25 April 2014

Social Media and Confidential Information, who owns what?

The recent case of Whitmar Publications Limited -v- Gamage and others has recognised that a company's Social Media presence is a business asset worthy of protection and that in limited circumstances employers may have ownership rights over accounts established and maintained by their employees. Although this case involved LinkedIn accounts, the Judgment would equally apply to Facebook, Twitter, You Tube and other social media.

Whitmar Publications Limited specialises in Magazines for the printing industry, their titles include "Flexo Tech", and" Digital Printer", and they have been trading for 25 years. Whitmar had established and maintained accounts on professional networking site LinkedIn, and was using LinkedIn groups as a sales, marketing and database tool.

When three of Whitmar's key staff left the company and immediately set up in competition, it turned out that they had been planning the move for a year whilst still employed by Whitmar. One of the employees as part of his job at Whitmar, had been responsible for maintaining the company's LinkedIn profile. The ex-employees starting soliciting business from Whitmar's customers, and one of the methods they used was the LinkedIn groups maintained by Whitmar.

Whitmar applied to the High Court for damages and an injunction to prevent the ex-employees from using confidential information obtained during their employment, which was granted on the basis that the information was confidential; was being misused by the ex-employees and would give them a competitive advantage. The employees were ordered to deliver up the log in details of the accounts to enable Whitmar to access and amend them.
BPIF Commercial Solicitor, Nicola Langley comments: "the important thing here is that the LinkedIn account was Whitmar's and although it was maintained and administered by the employee, that had been part of his job. The
case does not tell us what the court would have decided if the LinkedIn account had been set up by the employee personally, and the employee happened to share all his personal contacts and groups with the employer."

If there is no express agreement about the ownership of an account, and the contents of it, then the starting point would be that it belongs to the person who created it, as they have the contractual relationship with the social media site and the passwords. Therefore where a company uses social media as a tool for business it is vitally important that contracts of employment are clear as to the ownership of business contacts made by employees in the course of their employment and what will happen to social media accounts when employees leave.