Who owns LinkedIn contacts in the workplace?

There are a number of issues for employers to consider when terminating employment. The recent case of Whitmar Publications Ltd v Gamage and Others concerns a number of the areas discussed, most notably the ownership of LinkedIn contacts. The case confirmed that an employer can exert some control over an employee’s LinkedIn account post termination but emphasises the importance of having clear clauses relating to the ownership of social media contacts/groups in employment contracts.

Four months before they resigned from their employment with Whitmar, three employees set up a competing business named Earth Island. Whitmar discovered the existence of Earth Island following the resignations and brought proceedings seeking, amongst other things, an interim injunction to restrain the use of its confidential information. The ex-employees were accused of trying to poach at least one member of staff and removing and copying confidential information, including 450 business cards during their employment.

During her employment as Managing Editor one of the ex-employees, Ms Wright, had managed four LinkedIn groups on behalf of Whitmar. These groups were used post termination as the source of email addresses for an Earth Island press release inviting contacts to an informal event. Ms Wright claimed that the groups were personal to her and “just a hobby”; she refused to provide Whitmar with any of the access details for the accounts. Whitmar had no formal written contracts with the employees and therefore no post termination restrictions, confidentiality clauses or relevant policies on social media.

Although the court did not accept that any of the ex-employees were fiduciaries (who owe strict duties of loyalty to an employer), it did find that there was a strong case that the employees were taking steps to compete against Whitmar for more than a year prior to resigning. The court considered the steps the employees took before their resignation ceased to be preparatory and became active competition. As a result, the court considered the employees were in breach of the duties that they owed to their employer of fidelity and good faith. The court granted springboard relief, which prevented the ex employees from exploiting Whitmar’s confidential information.

The court found that Ms Wright’s duties as an employee included responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar’s benefit to promote its business. One important piece of evidence was that Ms Wright did not own a personal home computer and so had used Whitmar’s equipment to manage the accounts.

The court ordered the ex-employees to give Whitmar exclusive access, management and control of the LinkedIn groups. It also ordered them not to access or do anything that would restrict or prevent Whitmar from accessing the LinkedIn groups. This decision came despite the fact that LinkedIn’s standard terms actually state that ownership of a LinkedIn account is personal to the account holder so it is clearly preferable for employers to rely on express contractual terms relating to the ownership of social media contacts.