The use of online social networking in the workplace has increased dramatically in recent years, in particular through the use of LinkedIn accounts by employees to maintain lists of contacts made during their working lives. The question is raised as to whether the employer or the employee owns the LinkedIn contact lists that have been created in the course of employment. Further, whether an employer can insist on the return of such contact lists when an employee leaves a company.
Due to the terms and conditions of LinkedIn, ownership of a user account itself (provided it is in an employee’s own name) remains at all times with the employee and an employer cannot force the employee to transfer their account or disclose their username and password to them. The key question is therefore whether a LinkedIn contact list created in the course of employment constitutes ‘confidential information’ (ie. equivalent to a trade secret) and therefore owned by the employer.
Observations by judges in relevant cases suggest that basic data which is in the public domain such as the name of a client company, its head office address and contact telephone number do not amount to the equivalent of trade secrets. However, individuals’ direct dial telephone numbers and email addresses are quite likely to be treated as confidential, protected by the law of confidentiality and may not be disclosed or used by the employee without employer authorisation.
The usual breach of confidentiality occurs towards the end of an employment when an employee prints off or emails to himself a list of the employer’s contacts contained on the employer’s computer systems. The situation with LinkedIn is different because the employee has obtained confidential information in the course of his employment for the purpose of his employment. His employer has permitted him to do this and there is no question that he has obtained the information by any underhand means. If the employer has let the employee have the information can he take it back?
The English courts have already decided that where an employee keeps all his contacts (including his own contacts that pre-existed his employment) in his employer’s Outlook system, backed up on the employer’s server, the Outlook contact list will belong to the employer. However, a LinkedIn account is provided directly to the employee by LinkedIn and is hosted on LinkedIn servers therefore the Outlook case law is not directly applicable. Only one reported English case has touched on the ownership of confidential employer contacts migrated by an employee into LinkedIn.
In this case the Court held that even if the employer had authorised the employee to extract its confidential information and use it on LinkedIn, it had only given such authorisation for the purposes of the employment. By extension the argument follows that, just as with physical address books (or other hard copy lists), the contact details should be handed back to the employer at the end of the employment. In the context of LinkedIn this can only be achieved by the employee deleting the relevant connections from his LinkedIn profile.
Employees believe that the LinkedIn connections form part of their stock of knowledge that they are entitled by law to take with them throughout their career. There is presently no sign that the English courts will agree with this argument though and employers are advised to have up to date social media and confidentiality policies which clearly identify what LinkedIn information belongs to whom. Employees who have managed to build up extensive LinkedIn accounts would be wise to negotiate clear terms relating to their contact network before accepting new offers of employment.