Social media sites are numerous and some more popular than others but their use by employers and employees does throw up all sorts of interesting employment law issues. None more so than the use of LinkedIn given that it is designed to be used in a personal capacity but it is aimed at one’s professional life so blurs the boundaries as to personal/professional connections. Employers should have a social media policy in place to govern the use of social media both in work and the link with work outside of normal hours.
A recent High Court case revolved around the use of LinkedIn contacts after employment terminates and particularly when they are used in direct competition with the employer. The case of Whitmar v Gamage concerned a group of Whitmar employees who conspired to leave and set-up a competing business. The Company commenced proceedings against the employees on the basis that they were competing with their employer during employment. They also sought injunctive relief against the employees preventing the employees from using the confidential information they allegedly took, including LinkedIn groups that had been managed by them on the employer’s behalf. In this case, injunctive relief was granted as the High Court held that LinkedIn contacts could constitute confidential information.
I guess the boundary would be further blurred had the employees in this case not managed those groups but just been encouraged, as many employers do, to connect with professional contacts. A previous case of Hays v Ions confirmed that client contact information did not necessarily lose its confidential nature by being uploaded onto LinkedIn. However, the issue as to who actually owns contacts on LinkedIn has not yet been legally resolved.
In the meantime, employers can protect themselves with a social media policy and reviewing their restrictive covenants contained in their employment contracts to ensure they cover the latest social media advances.
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