A recent case, Whitmar Publications Limited v Gamage, has provided some further guidance for employers on the difficult question of who owns the confidential information contained in LinkedIn accounts of its employees.
This case concerned a team of three employees who planned to leave their employer and set up in competition. Whitmar discovered, after the employees had left, that they had been conspiring to set up a competing business during their employment. Whitmar sought an interim injunction to stop its ex-employees using the confidential information. Unfortunately for Whitmar, it did not have any post termination restrictions in the ex-employees’ contracts of employment. Therefore, they were only able to rely on the implied duty of loyalty and good faith that the employees had to Whitmar.
One of the areas the High Court examined was in relation to a Miss Wright who had managed four LinkedIn groups for Whitmar during the course of her employment. Miss Wright claimed that in accordance with the LinkedIn user agreement, she was the owner of the account, and the groups were personal to her .
The High Court examined the key issues on ownership rights around social media accounts. Although LinkedIn user agreements are often in the name of the individual and not a company, the High Court still felt that contact details on the LinkedIn accounts could be considered the property of the employer.
Unfortunately, the High Court made no final decision on these issues. However, it did find that Miss Wright’s duties as an employee included a responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar’s benefit to promote its business. The High Court also took into account the fact that Miss Wright did not own a home computer and had used Whitmar’s equipment to maintain the LinkedIn accounts. Consequently, the High Court granted an interim injunction and Whitmar was given exclusive control of the LinkedIn groups.
Clearly, this case does not provide answers to all of the questions surrounding social media accounts. To avoid getting into disputes such as these, employers are advised to have in place strong social media policies. One approach might be to ensure that employees are required to maintain a clear separation between their personal social media accounts and their work related accounts. However, the only way employers can really protect such information is to communicate their social media policies very clearly to employees and back these up with express contractual provisions in the employee’s contract requiring access to such accounts on termination.