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LinkedIn and Twitter: Whose account is it?

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08/10/2013

Social media makes it very easy for employees to create a network of individuals with whom they currently work and/or may work in the future. However, the border between the personal and the professional in this context can be a very blurred one, and the question of who owns the contacts on LinkedIn – or on Twitter – is one that is that is increasingly troubling the courts.

In the UK, under the Copyright and Rights in Databases Regulations 1997 (the 1997 Regulations), databases compiled by employees in the course of their duties are, by default, the property of the employer. The 1997 Regulations prohibit “extraction and reutilisation” without the consent of the owners. However, the data in social media accounts are held on a third-party server and require little or no investment from an employer to create, except perhaps indirectly through the use of the employee’s time. It is therefore questionable whether contacts on social media would satisfy the definition of a database for the purpose of the 1997 Regulations.

In a case from before the explosion of social media – PennWell Publishing (UK) Ltd v Ornstein [1] – the High Court held that a list of contacts created and maintained by a journalist on his employer’s email system belonged to the employer, although the court stated that if he had kept his personal contacts separate from his employer’s, then he would have been entitled to use them. This was followed by Hays v Ions [2] where the High Court found that an employer had reasonable grounds to bring a claim against a former employee who had used its database to create personal contacts in LinkedIn, although that case was somewhat exceptional as it concerned an alleged serious breach of trust.

More typical is the case concerning the political correspondent Laura Kuenssberg, who had built up a Twitter following of over 60,000 on her BBC account. The BBC had no written policy for who owned followers of a Twitter account and, as a result, Ms Kuenssberg was able to transfer the 60,000 followers across to her new ITV Twitter account when she transferred to ITV.

LinkedIn stipulates that the account is owned by the employee. This can present problems for employers. Many employees take their LinkedIn account with them when moving jobs. However, this summer, in Whitmar Publications v Gamage [3], the High Court showed itself prepared to grant an injunction to prevent a former employee from using LinkedIn to compete with his former employer.

The Whitmar case involved allegations of breach of duty against an employee, who it appeared was seeking to take confidential information (contained in the employer’s LinkedIn groups, which in turn was stored on his employer’s computer systems) for his own benefit to the detriment of his employer.

Practical tips for businesses

There will be more cases involving ownership of contacts on LinkedIn and Twitter. In the meantime businesses should:

  • establish clear guidelines regarding the privacy and confidentiality of LinkedIn and Twitter networking information and ensure those guidelines are communicated to employees
  • ensure that the guidelines make clear that the business retains the proprietary interest in all contact management software, including LinkedIn and Twitter
  • ensure that the business retains control of all usernames and passwords for “branded accounts” in a similar way to email addresses.
  • ensure that the business’ LinkedIn groups are held separately from personal LinkedIn accounts
  • ensure that LinkedIn contacts are replicated elsewhere on the network
  • incorporate a provision into contracts of employment whereby the employee assigns any proprietary interest in LinkedIn contacts to the employer or that they agree to close down their account when their employment ceases.

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[1] [2007] EWHC 1570
[2] [2008] EWHC 745 (Ch)
[3] [2013] EWHC 1881 (Ch)

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