Employer obtains court injunction to prevent ex-employees from using social media contacts
Employees are increasingly using social media sites, such as LinkedIn, to connect with existing and potential clients. There are clear benefits to their employers in this while they remain in employment - but what happens after their employment ends? There has been little guidance from the courts on this until recently when the issue of LinkedIn contacts came before the High Court in the case of Whitmar Publications Ltd v Gamage
Facts
Gamage and other senior employees at Whitmar set up a rival publishing business and attempted to solicit clients and employees for the new venture while still working for Whitmar. They also removed around 450 business cards containing client contact information from the employer's premises, and attempted to use the company's LinkedIn groups to promote their new business.
After leaving employment, the employees refused to disclose the user name, password and access details for the LinkedIn groups to Whitmar, so the company did not have administrative access to its own LinkedIn pages. And one of the employees, who had previously managed Whitmar's LinkedIn presence, extracted the company's client contact details from LinkedIn in order to invite clients to a drinks event with the new venture.
Whitmar sought 'springboard' injunctions to prevent its former employees from misusing its confidential information to gain an unfair commercial advantage.
High Court
The court granted Whitmar the springboard injunctions, which are interim measures, having been persuaded that the company had a good chance of succeeding at trial. The injunctions forced the employees to facilitate the company’s access, management and control of the LinkedIn pages, and restrained them from doing anything to stop the company from accessing the pages. The employees were also prohibited from entering into contractual relations with any of the 450 clients named on the business cards they removed.
Although the employees did not have written contracts of employment – and, therefore, no post-termination restrictions - the employer was able to rely on the implied duty of good faith and fidelity. This had been infringed by the employees in the steps they had taken during employment to set up a competitive business venture.
Comment
This case provides welcome assurance to employers that where they require employees to maintain LinkedIn pages on their behalf during the course of employment, the courts are likely to find those contacts belong to the employer. The case also sets a precedent that injunctions may be granted where former employees try to misuse such contacts post-termination.
However, the case did not answer the wider, more common question of what happens to an employee's personal LinkedIn account where the maintenance of the page has not been required by the employer but where the employee is nevertheless connected to the employer's contacts.
To protect their commercial interests in such situations, employers should ensure their contracts of employment include enforceable post-termination restrictions, including non-solicitation and non-dealing with the former employer's clients. Employers should also have robust social media policies outlining acceptable use of social media and dealing with the ownership of business contacts made during the course of employment.
Some commentators also suggest including express provisions in employment contracts requiring employees to delete their employer's business contacts on the termination of their employment. But it is not clear whether the courts would enforce such provisions. However, the greater the degree of connectedness between the employment and the LinkedIn page, the more likely such a provision is to be enforceable. Other practical measures, such as requiring employees to set up LinkedIn pages during working hours using their work photo and work contact details, may be prudent.
Angharad Schell is an employment lawyer at Field Fisher Waterhouse
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For more on post-termination protections, go to restrictive covenants (hr-i/employment law/terms and conditions/restrictive covenants/overview)