By Daniel Hunter
Where social media is used for business purposes it is essential to safeguard the ownership of contacts when the employee handling the account moves on. Employment law specialist Andrew Lightburn, associate at hlw Keeble Hawson, explains how companies can avoid valuable data being transferred to a rival.
As businesses strive to keep abreast of the rapidly changing social media trends and their impact on trading, the issue of who actually owns contacts and ‘followers’ should not be neglected.
Many companies encourage staff to market their services informally by operating Twitter accounts centred around their jobs or about issues affecting their sector. Such accounts can quickly attract hundreds and even thousands of ‘fans’ and ‘followers’, creating a very valuable marketing commodity, but what happens if the individual leaves the company?
In the case of LinkedIn, although accounts can only be registered by an individual and not a company, there is little doubt that the person’s job role will have helped them establish many of their contacts. Indeed, invitations to form a connection may have been sent via the email addresses stored within a workplace account. If the employee leaves the company is entitled to demand that such contacts are deleted from the account.
Of course employees may disagree, and this thorny issue has yet to come to trial in the UK. There are, however, clues as to how the first case will be decided.
The law is likely to separate out ownership of a LinkedIn account from the ownership of the connections it contains. This is because the account is set up under a contract between the employee and LinkedIn, so as a third party the employer cannot compel the employee to reveal the password or login details.
The employer is likely to succeed in claiming ownership of contact details, however, if it can prove that they amount to confidential information which was obtained from the company’s database. This is because the database is protected in law as an asset of the company.
An existing judgement in the English courts makes the situation much clearer over contacts within email accounts. It was decided that where an employee keeps his or her contacts in his employer’s Outlook system, backed up on the employer’s server, the contact list will belong to the employer. This includes employees’ own contacts that had been obtained before joining the company.
The overriding principle is that contacts derived from employment belong to the employer — whether within a LinkedIn account, an email folder or in hard copy — and they should be handed back when employee leaves. With LinkedIn the only way to do this is for the employee to delete the relevant connections from his or her profile.
The ownership of Twitter followers is more of a grey area, and employment lawyers will be watching legal developments closely. Even a technology-savvy organisation such as the BBC has struggled to keep pace with developments, and was badly caught out last year when its well-known political journalist Laura Kuenssberg left to take up a new position at ITV News. After amassing more than 60,000 followers on her BBC-branded Twitter account she was able to take them with her simply by changing its name from @bbclaurak to @itvlaurak.
How many of those followers had been attracted by the prestige and prominence of the BBC? A reasonable guess would be quite a few. Nevertheless, as the BBC had no provision within its social media policy establishing ownership of Twitter followers, the organisation could do nothing to stop her.
This case is a salutary reminder that employers should review employment contracts to ensure that they include robust confidential information clauses including policies on contacts built up within LinkedIn, Twitter and Facebook sites. This information should be emphasised by regular refresher sessions at which employees are reminded of the policy relating to contacts made as a result of their role within the company.
This message should be repeated when an employee leaves, and he or she should be asked to delete any relevant contacts and LinkedIn profiles, and to sign a declaration confirming that this has been done.
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