Monday, July 19, 2010

A new Outlook for LinkedIn?

Contact ownership?

It is established law that Outlook and other business contacts can belong to the employer not the employee.  One of the main cases on this point is Pennwell Publishing (UK) Ltd and others v Ornstien in which the judge said:

Image: Michal Marcol / FreeDigitalPhotos.net

".........where an address list is contained on Outlook or some similar program which is part of the employer's e-mail system and backed up by the employer or by arrangement made with the employer, the database or list of information ......... will belong to the employer"

So this is pretty certain, right? Well what happens if an employee uses a social network such as LinkedIn to invite contacts to join their network (publicly viewable) using email addresses sucked through from Outlook? See how to do it here 

Should these contacts also belong to the employer and has the employee just given away valuable information that is searchable by competitors? 

Unsurprisingly there has already been some clarification on this in Hays Specialist Recruitment and others v Ions [2008] that case said that because the contacts had been migrated to the social network and invitations had been accepted the information could no longer be considered confidential.  Such a breach of confidence may be actionable but would the employee be worth suing?

Interestingly, in the ' Hays' case Ions argued that he had been encouraged to join the social network by his employer.

Comment:  if you want your employees to engage in social networking on behalf of the business under what circumstances may this occur.  Do their employment contracts and policies make clear who owns the contacts (as well as the profiles) and where they can be used?  This is particularly poignant for recruitment agencies and sales teams where contacts are very valuable.


Even if the confidentiality of contacts is preserved social networks such as LinkedIn make it easier to reconnect as a former employee can simply search and reconnect for contacts. Where this is the case breach of a restrictive covenant may be a more valuable action although often not practical.

Restrictive covenants and LinkedIn

Social Media platforms have very powerful search functionality and with certain applications allow companies to trend sentiment towards their business and brands.   The open and searchable nature of social networks makes this analysis possible and led me to think what other uses could be made of these tools.

The one that stuck in mind was monitoring restrictive covenants.  Many employees (including lawyers) will have restrictive covenants in their contracts, for example the employee shall not:

".....solicit or endeavour to entice away from the Company the business or custom of a customer with a view to providing goods or services to that customer in competition with the business of the Company......." (PLC)

What better way to monitor compliance with such a clause than searching social media networks and in particular LinkedIn?  Status updates and lists of connections could be used to both monitor and prove breach of such restrictions.  The options available to an employer who discovers a problem will always be situation specific......but finding and proving a problem could be easier.

The searchability of Social Networks leads me the believe that Social Media is leading to more monitoring and consequently a "big brother" information society?  Who needs CCTV when you have social media? 

14 comments:

潘凱花潘凱花 said...
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承蘋承蘋 said...
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Julian Summerhayes said...

I am not sure I agree with the analysis that if an Outlook database is migrated to LinkedIn that ipso facto that that information is the employers. Even where consent is not expressly sort, if an employee is encouraged or more likely pressurised into winning work, then it must be a legitimate argument to say that the employer must have impliedly sanctioned it unless of course there is an express policy that forbids such conduct. However, this presents a very odd scenario. If the contact does not accept the invite where does the data then sit - not in a vacuum I would conjecture - and save for deleting the sent items then what loss flows from this? If the contact accepts the invite but nothing further is done where does the loss arise. It would be a nonsense to issue proceedings unless of course the numbers were so substantial to make it otherwise. The principal issue is the soliciting, canvassing, enticing or tapping up AND leading to business going to the individual or his new employer. However, can these contacts be called anyone's and what happens where even if they were not on the network when the invite was sent but it can be shown that they would have been, having received an invite from elsewhere. This will require the courts to elucidate on the definition of "client" in an electronic space and it cannot be right that someone who would have joined the network could be described as an exclusive client of the business. Interesting times but no matter how detailed a handbook or policy it will not eradicate those people that want to argue their way out of the mischief that is clearly intended by preventing the export of contacts.

Where does this end though particularly when the client knows that the ex-employee is on other social networking and bookmarking sites.

I very much hope that the law does not become the sledge hammer to crack a nut.

Great blog post again.

Julian

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Matthew Owen Gingell (MOG) said...

Thanks for the comment Julian. I agree if there is encouragement there must be implied consent to publish contacts unless the employee has been told that the contents are strictly confidential!

As you say, would you sue an employee for breach of confidence? Not only hard to prove but what do the other employees think?

Motivating and managing staff at a practical level has to be the key to manage this problem.

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