Social media and confidentiality policies

Year Published: 2022

Employment case study: Matt Ottley talks about a recent case in which an ex-employee argued that he did not misuse confidential information or breach a previous contractual obligation in continuing to utilise contacts made via a social network after leaving his employment. It’s a useful reminder to employers to put into place up to date and clear social media and confidentiality policies.

 

Background

 

The defendant was a recruitment agent who resigned and set up his own recruitment business. He advertised this to his 3,500 connections on LinkedIn, most of whom he had gained during the course of his employment with his old employer. The defendant refused to hand over his LinkedIn password and allow the deletion of his contacts by his previous employer and they brought an injunction against him for misuse of confidential information. The High Court found in favour of the employer.

Facts

 

As a recruitment agent, Mr Wilson (W) had a LinkedIn account which he used in the course of his business activities.He had made approximately 3,500 connections, most of which were gained during the course of his employment and was linked to his employer’s email address.

Only W had access to his LinkedIn password, however his employment contract contained post-termination confidentiality clauses and non-dealing restrictions. It specifically provided that W would make available all passwords for any online networking site to his employer upon request and that on termination of his employment, he would permanently delete all electronic records of his professional contacts, including clients and candidates made during the course of his employment from his networking accounts. W’s contract further expressed that he would provide a written statement that he had complied with these contractual obligations. Moreover, W had a separate contractual agreement with his employer that any LinkedIn connections made whilst working for them belonged to the employer and that they would have the right to remove any connections W had made during the course of his employment by any means necessary upon termination.

When setting up his new business, W used his LinkedIn account to circulate news of his new venture to his connections. This concerned his old employer, who feared he was misusing confidential information and client contacts. They therefore sent him a letter before action, requesting that he provide them with his LinkedIn password. W refused, prompting them to commence legal proceedings to prevent the misuse of confidential client and candidate information.

 

Decision

 

Before the trial, the parties in this case had agreed a compromise on all matters except costs which were to be determined by reference to who had ‘won’ the issue over ownership of LinkedIn connections. W had agreed to provide his password to his employer and delete his connections, albeit he argued this was a commercially sensible decision and not a concession that his employer was correct. W relied on the service agreement he had with LinkedIn which provides: “as between you and others (including your employer), your account belongs to you” and argued that this overrode his contractual obligations to his former employer.

 

The judge considered the relevant contractual clauses alongside the separate LinkedIn agreement W had with his employer and concluded that W was wrong to refuse to delete his connections and deliver up his password. The judge held that the agreement between W and LinkedIn did not override his separate contractual obligations to his employer which he had freely entered into – this “co-existed, and was fully effective, alongside the LinkedIn/Wilson contract.” The judge concluded that in compromising with the employer by providing his password and deleting the connections, W was “bowing to the inevitable, even if he did not think he was.”

What to take away from this case

 

The parties in this case had reached a compromise before a full hearing, so whilst this decision did not emerge from a full trial of the issues, it does highlight the importance of employers ensuring they put in place up to date social media and confidentiality policies. These should make clear who owns business contact information and networking connections made during the course of employment on platforms such as LinkedIn. It is also key that employee’s obligations upon termination such as delivering up passwords is clearly outlined.

Overall, this is an encouraging decision that demonstrates that contractual provisions freely entered into by an employee, and which are clear on the issue of confidentiality and ownership of business connections, will not be overridden by any separate agreement an individual has with a networking platform. Consequently, as here, employers can successfully enforce these clauses and ensure the protection of confidential client information and the integrity of their brand.

For more information please contact Matthew Ottley on 0161 475 7663  or [email protected]

 

 

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