You may think this is a simple question with a straightforward answer - the person who creates and uses the LinkedIn profile. However, a recent case has highlighted that this may not be the case.
The case is probably good news for employers who want to stop ex-employees from using business contacts collected during their employment post-employment. It's bad news for employees who want to leave their jobs to start their own businesses and intend to take contacts or know-how with them to build their new enterprise. Further details below...
Bottom line: social network sites are a fact of business life. Company's Internet policies must cover how employees can use them, including the do's and don'ts of posting and how business contacts, including those made through social network sites, should and shouldn't be used. These policies need to be realistic, subject to employee consultation and communicated clearly to everyone in the organisation.
Hays v Ions - Summary of Application Order
The recruitment firm Hays has won an application in the High Court against an ex-employee, ordering him to disclose confidential information stored on his LinkedIn account which had been accumulated during his employment with Hays.
Hays had encouraged Mr Ions to use the LinkedIn services for the purposes of his employment. However, the Court decided this did not constitute authorisation to use the information gathered and stored on his LinkedIn account after he had left Hays.
So Mr Ions was ordered to disclose:
- the business contacts on his LinkedIn page which had been requested by Hays;
- all emails sent to or received by his LinkedIn account from Hays' computer network; and
- all documents that indicated his use of the LinkedIn contacts and any business obtained from them.
Hays v Ions - Judge's Reasoning
Mr Ions' argument was that the information he accumulated via his LinkedIn profile was done with Hays' consent. He also argued that once the information was uploaded and the invitation to join his network accepted, the information ceased to be confidential because it was accessible to a wider audience through his network. The Judge rejected this argument.
The Judge considered that Hays had an arguable case that Mr Ions had breached the terms of his employment contract, which restricted him from using confidential information other than for the purposes of his employment with Hayes. As such, the Judge made the order for pre-action disclosure.
However, the Judge rejected Hays' additional request for a copy of Mr Ions' entire database of clients as "plainly too wide."
Prior to the application hearing, Mr Ions had made an offer to Hays to delete "the entirety of the Hays linked contacts" from his LinkedIn network though he did not say how many there were. Hays asked him for full details of these and to preserve this evidence. However, Mr Ions then said he had arranged for his former LinkedIn network to be deleted, he had no other copy of the list and could not recreate it.
The US operator of LinkedIn agreed to preserve the data pending the outcome of the case.
Here are our thoughts on the wider issues raised by this application.
At what point does confidential information owned by a business cease to become confidential? If an employee is encouraged to use social networking sites such as LinkedIn, this has obvious benefits for the employer whilst the employee is working for him. However, what happens to the information the employee holds under the profile he has been using whilst in employment?
Sharing and collaboration ethos of social networking sites vs laws protecting confidential information. There's obvious tension here which will only increase as social networking and other Web 2.0 features are used at first by businesses who are initially keen to follow the zeitgeist, and then by most businesses, as these digital media become more widespread and integrated. How will the common laws of confidence adapt to this new climate?
Employers' internet use policy? Interestingly, Hays' internet use policy was not examined by the Judge in the application against Mr Ions. However, as we've already suggested, Internet use policies need to be reviewed so that they cover social networking sites.
Laurie Kaye/Yasmin Joomraty