What happens to the connections, followers, or friends you gain on social networks while acting in a professional capacity or on behalf of your employer when you leave that place of work? Say you have made some useful connections on LinkedIn during your time at work and plan to use them to help start your own business. Does your employer have the right to claim that they own those connections?
The answer is, they often can! We look at the case law both in Australia and overseas to show you the kinds of factors courts take into account when employers and employees each claim the legal rights to social media accounts and connections.
Social Media and Work
Social media networks have become a staple of both the personal and professional spheres. Most, if not all businesses today have social media accounts and hire people to manage them. Employees are often encouraged to build networks and reach out to potential customers, clients or other businesses through either personal or company social media accounts.
Professional networking site, LinkedIn is most prone to this sort of practice. Employers can expect employees to represent and promote their company or brand on the platform as well as directly communicate with the business’ current and prospective clients. This is despite LinkedIn’s User Agreement maintaining that individuals cannot transfer “any part” of their account to a third party, which includes their connections. In many cases, however, an employer has been found to reserve the right to take back, or restrict the use of, LinkedIn accounts and contacts.
Networking on LinkedIn: Personal or Professional?
To determine whether your employer might own your LinkedIn connections, ask whether you have come to know a contact in a personal or professional capacity and whether it was during the term of your employment. Although you may have developed a personal relationship with a client, an employee’s personal connection can be a legitimate business interest and technically, the company’s property (Cactus Imaging Pty Limited v Glenn Peters  NSWSC 717).
In the UK, the High Court held that an employer will more likely own an employee’s LinkedIn contacts if the employee formed the relationship with the contact during his or her time with the company (Whitmar Publications Ltd v Garage & Ors  EWHC 1881 (Ch)).
If an employee has been employed solely for creating, managing and developing the business’ social accounts and media presence, your employer will likely own your contacts. As such, marketing employees, social media managers and employees engaging in business development through social media should remember the distinction between personal and professional networking on LinkedIn and other networks.
Are You Breaching Confidentiality or a Company Trade Secret?
The courts have then also considered whether LinkedIn connections are ‘confidential information’. In Naiman Clarke v Marianna Tuccia  NSWSC 314, the Court held that using client lists to boost LinkedIn connections was a breach of confidentiality.
What Can Be Done to Avoid a Dispute?
Carefully review your Employment Agreement before signing and look for a clause that addresses social media accounts (both personal and professional), as well as non-compete clauses that may explicitly include LinkedIn connections. If you are unsure or have any questions about your contract, ask your employer or speak with a lawyer to help you draft a clause to avoid any ambiguity.
It can be difficult to navigate the relationship between your employer and your social media accounts. Consider whether the connections you have made during employment have been in a personal or professional sense. If you are in any way involved in managing the company’s social accounts, ensure you understand your rights. If you are leaving the company and intend to use your LinkedIn connections to start a new venture, ensure that you are not breaching your Employment Contract. If you have any questions, get in touch with our employment lawyers on 1300 544 755.
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