I was asked who owns your employees' LinkedIn contacts during a LinkedIn training session for the HR department of a manufacturing business in Oxfordshire.
And it's a very good question!
But not one that necessarily has a cut and dried answer for UK business owners.
So let's look at the different aspects of LinkedIn for business.
Who owns your Linkedin Company Page
As far as the LinkedIn Company Page of a business is concerned, LinkedIn's set up requires that anyone setting up such a page should have a LinkedIn account that includes a domain-based email address for that company. This was done to stop potential problems where unauthorised employees could set up a Company page and hold the business to ransom over its ownership when they left.
These days, the business owner can authorise a member of staff to create such a Page and that person can then add further Admins to manage the Page or remove them if they leave the Company. You, the owner or Managing Director, should ensure that your personal account on LinkedIn is also an Admin of your LinkedIn Company Page.
BUT! Once you have added an Admin, there seems to be little to stop anyone from being able to remove you as an Admin should they so desire!
Who owns your LinkedIn Groups
The most recent UK case law involving LinkedIn is Whitmar Publications vs Gamage, Wright, Crawley, Earth Island Publishing from October 2013.
However, the references here are solely to the ownership of members of LinkedIn Groups that were managed by an employee on behalf of the company, not to an individual's personal contacts.
The LinkedIn Groups had been run by the employee on behalf of the employer with a view to getting new customers for the employer and using the employer's IT equipment so the Judge ruled that all log in information should be returned to the Company.
Who owns your employees' LinkedIn contacts?
Back in 2008, another case,Hays Specialist Recruitment (Holdings) Limited and Another v Ions and Another did talk about LinkedIn contacts.
The Judge in that case said:
"..Mr Ions accepts that he uploaded the addresses of business contacts to LinkedIn while he was still employed by Hays. He does not suggest that he had any of the business contacts except as a result of his employment with Hays and, given that he had been a full-time employee of Hays for over 6 ½ years, it is very unlikely that he had many, if any, independent contacts. The disclosure is therefore limited to contacts which he obtained in his capacity as an employee of Hays.
The most useful advice I have found comes from two sources:
Ashley Hurst, a Partner of Olswang, who was asked these two questions here
"How does the court's injunction decision [for Whitmar Publications vs Gamage, etc] sit with LinkedIn's Terms & Conditions, crucially on whether employee LinkedIn contacts belong to employees or employers?
The LinkedIn Terms & Conditions create a contractual relationship between LinkedIn and the individual user, and not the employer. Separate proprietary rights can be created as between the social media user and others on whose behalf the social media account is being operated. LinkedIn's terms are therefore of little relevance to the position as between an employer and employee.
What lessons can be drawn so far from the case for employees who use their personal social media accounts during their day-to-day work activities too?
In relation to Twitter, many employees who use it for work purposes have a separate personal account that does not associate itself in any way with the employer. This is a sensible practice and is being encouraged by many companies. But it is not so easy to do that with LinkedIn, which is intended as a professional network. For LinkedIn groups, the position is clearer as they will not normally be associated with a particular individual. However, companies need to decide how strict a policy to apply in respect of personal LinkedIn accounts. One sensible approach is to ensure that all company contacts generated through LinkedIn should be shared with the company database and to ensure that on exit the employee makes clear on his LinkedIn profile that he or she is no longer employed by that company."Jonathan Lea says:
"It has been held that direct dial telephone numbers and email addresses stored on your work IT systems can be classified as confidential information, and as such are owned by your employer. The big difference with LinkedIn is that ownership of the account is personal to the account holder under LinkedIn’s own terms and conditions. And this data, of course, is stored on LinkedIn servers, not that of your employer’s.
Until further rulings, the position appears to be:
1) If the contacts are in the name of an employee’s personal account (i.e. an employee is not maintaining a LinkedIn group on behalf of an employer) an employee is likely to be in a stronger position.
2) If the contacts amount to private information gained during employment, such as emails and direct dial telephone numbers, this would significantly weaken the position of an employee.3) If an employee has compiled their contacts from uploaded email addresses at work, or an employer has in some other way provided an employee with business contacts and/or paid for a premium service in respect of online networks, a claim for ownership is likely to be more in an employer’s favour.
Other factors to consider are whether:
1) An account is maintained for the main purpose of promoting the firm’s business.>
2) The information collected and used is used solely during the course of employment.
3) The use of such information by an employee amounts to a breach of fidelity and good faith.
4) It was instructions from an employee’s superiors to manage the Linkedin account in a certain way that contributed to the growth or success of the account.5) Any guidance was given by the employer in establishing connections which was in the course of employment."
Does your business have a social media policy?
It becomes crucial for businesses to have a proper social media policy that is easy for employees to understand.
This article from December 2014 refers to advice by Michael Farrelly, employment lawyer at Excello Law.
He states that LinkedIn is the equivalent of a portable database and, worse, when updated by an ex employee, sends out a notification to all those contacts that the person concerned is working for a new company.
Any restrictive covenant that talks about ex-employees not soliciting company contacts falls short here because it is LinkedIn doing the telling, not the individual.
He has some interesting views on how a Company's social media policy should be set up to preclude use of LinkedIn during gardening leave.
However, some of the comments say that none of his points are workable.
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