22 Sept 2015
Emily Chalkley
Job Title
Image: ©Norebbo.
With so many people using LinkedIn as a business tool, enabling individual employees to make connections with their clients and prospective clients, veterinary practices need to be aware of the potential pitfalls as well as the benefits and opportunities.
Many employers actively encourage their employees to use LinkedIn, yet most are blissfully unaware of the range of problems that can arise from its use in the workplace, especially when an employee leaves the practice. Among other things, LinkedIn enables employees to build up a database of contacts, including clients, prospective clients, customers and suppliers.
As a LinkedIn account is (on the face of it) personal to the employee, the contact details contained in the account are fully portable and therefore normally automatically follow the employee to his or her new practice, who may be a major competitor.
But who owns the data in the LinkedIn account? This is a much debated question and is becoming the subject of an increasing amount of litigation, particularly where key employees move to competitors or set up rival practices.
Most employees see their LinkedIn profile as an individual account and the notion their employer has any rights or ownership over it, or its contents, can be somewhat confusing. Indeed, the terms of engagement with LinkedIn itself specify that upon the creation of a new profile or account each person’s account is personal to them and the security details for that account (being the username and password) should not be disclosed to any other party.
Employees often argue that in addition, once a contact is made on LinkedIn, that individual and his or her contact details contained on his or her own LinkedIn profile ceases to be confidential information that is capable of being protected or confidential to the practice, as those details are viewable by any member of the public who is connected with that particular LinkedIn profile.
On the other hand, the practice/practice owner will want to protect its/his or herself. At this stage it is important to distinguish between the account itself and the data contained within it.
One important factor in determining who owns the account and/or the details of the contacts contained within it is whether the account (or contact) was “made during the course of employment”. If it was, then an employer can argue this contact list is the property of, and confidential to, the practice, and, therefore, if the employee discloses this data or takes it to a competitor following termination of his or her employment, this would infringe the employer’s database rights.
An employee could also be in breach of his or her express or implied duties under their contract of employment. However, in practice, there will frequently be a mixture within an individual’s LinkedIn contacts of those made during the course of his or her employment, pre-existing connections and connections that arise while the individual is employed, but from educational or personal relationships, rather than through work or business connections. Contacts arising from these latter two situations are likely to belong to the employee rather than the veterinary practice.
The question of the ownership of LinkedIn accounts and the data/contact details within them is not a straightforward issue.
The increased use of LinkedIn has created a number of grey areas, in which the courts have inevitably had to intervene. In one of the first cases concerning LinkedIn, Hays Specialist Recruitment (Holdings) Ltd and Another v Ions, back in 2008, the court decided (perhaps unsurprisingly) that deliberately migrating details of business contacts from the employer’s confidential database to his or her personal account at LinkedIn, is likely to be a breach of confidentiality.
In the more recent case of Whitmar Publications Ltd v Gamage, the High Court considered whether a former employer can exert some control over an employee’s LinkedIn account after the termination of his or her employment to protect its business.
Here, a group of employees set up a competing business before they resigned their employment with Whitmar. Whitmar issued proceedings, including an application for an interim injunction to restrain the use of its confidential information. One issue considered by the High Court concerned the access to four LinkedIn groups one of the employees had set up and managed on behalf of Whitmar during her employment. She asserted the groups were personal to her and were a “hobby”.
She refused to provide Whitmar with the user name and password for the groups. However, it was clear these groups had been used as the source of email addresses to market the new business after the employees had left Whitmar.
The High Court found the ex-employees had been taking steps to compete against their former employer for more than a year before they resigned and that these steps crossed the line so as to constitute being actively in competition, rather than merely undertaking preparatory actions in advance of actively competing.
The court found Whitmar had a right to the data contained in the particular LinkedIn groups in question because the employees had operated the groups for Whitmar’s benefit to promote its business while they were employed by Whitmar, and had used Whitmar’s equipment to do so (opposed to using a home computer). As a result, the former employee was ordered to provide details to enable Whitmar to access and manage the groups.
To protect themselves, veterinary practices should consider the following:
The law on this area is fast moving and constantly developing. Veterinary practices should take a proactive stance and follow the steps set out above to help protect their practice and avoid potential future litigation.
