Sign in
Courtesy navigation
Search
Employee promoting your business on networking sites – who owns his contacts when he leaves…?
Employee promoting your business on networking sites – who owns his contacts when he leaves…?
April 22, 2010
An employee whose job is to promote his employer’s business on Twitter has handed in his notice to go to a competitor. Most of his followers on Twitter are clients or suppliers of the business, or good prospects. Do their details belong to the employee, so he can take them to his new job, or do they belong to the employer, so he can’t?
This is an issue facing an employer friend of mine. There is nothing specific in his employee’s contract of employment stopping the employee (let’s call him Alan) from using or disclosing his employer’s information, but my friend is arguing that the details are his ‘trade secrets’ – confidential information that would be likely to cause real or significant damage to him if they became publicly known. If he is right, Alan cannot use them because ex-employees are under an automatic and implied legal duty to keep their former employer’s trade secrets confidential, whatever their contract says.
Three issues
But Alan is arguing three points. First, he is saying that the Twitter profile – and everything on it – is his personal profile, not his employer’s profile, so my friend has no right to the details on it.
Second, he is saying that the details aren’t trade secrets, they are just ‘confidential information’ – information that my friend would not want rivals to find out. ‘Confidential information’ is wider than ‘trade secrets’. Current employees are under an automatic, implied duty not to use or disclose confidential information. But ex-employees can use or disclose confidential information unless it is also a trade secret, or unless they have a contract of employment that specifically says they must.
Third, Alan is saying my friend authorised him to build up his followers on Twitter – where anyone signed up to Twitter (including competitors) can see them – so my friend has authorised their disclosure. This means they are no longer trade secrets or confidential information.
My friend disagrees on all three counts. Who wins?
Confidential information – court backs employer
A recent court case helps my friend. An employer encouraged employee X to invite business contacts to join X’s network on a business networking website. X then left to set up a competing business, and started using those contact details. X’s former employer objected on grounds that the details were the employer’s confidential information, and there was an employment contract between them that prevented X from using confidential information after he left. X argued that the contact details stopped being ‘confidential information’ when they became available on the site. They were not therefore covered by the terms in his contract of employment.
X lost the case. One reason was that the judge found that the employer’s authority to Y to use such sites had been limited to using them in the performance of his duties as an employee.
As a result, X was ordered to disclose the contacts’ details to his former employer, and also all documents showing his use of the contacts, and business obtained from them since he had left.
However, if the employer had not put a limit on X’s use of such sites (for example, had allowed the employee to use the site for non-work purposes too), or there had not been a specific contract clause protecting confidential information, the decision may have gone the other way.
What’s important
So it’s important that there are contract terms and/or staff policies that:
- Specify which employees are authorised to use networking sites for work purposes.
- Specify the sites, and the profiles (or accounts) to be used for those purposes.
- Set restrictions on what those employees can and can’t do and say using those profiles or accounts.
- Particularly, make it clear that employees are only allowed to post work-related information, and that they are only being allowed to do so for the purposes of their employment – so that they cannot use or disclose that information either when they leave.
- Above all, make it clear that the information – about customers, suppliers, referral sources – or anything else work-related – posted to such sites is, and remains, the employer’s ‘trade secrets’ and ‘confidential information’, no matter who can see it on the site.
Confidential information v trade secrets
This leaves my friend with two problems. First, Alan’s employment contract does not specifically stop him from using or disclosing ‘confidential information. So if my friend cannot show the details on the Twitter profile are ‘trade secrets’, he may find they are not protected.
Worse, it turns out that Alan was, quite innocently, also using the Twitter profile to post personal, non-work items on it too. So, given the court case we looked at earlier, it looks like my friend has two problems … hmm, time for legal advice.
Founding partner
Follow us on:
Law Donut
Legal resources for you and your business - employment law, personal law and more | Law Donut
Copyright © 2009-2012
Comments
[...] As to whether the list of connections and followers an individual solicitor builds belongs to the firm or to the individual solicitor, in my view it is not important for the firm to try to own those connections. For background issues on this topic see Law Donut discussion [...]
This is an interesting situation that I think will become a bigger and bigger issue. I wrote some commentary on this a while back from an Australian perspective. Have a look here: http://ht.ly/1FQQ4 or http://www.rostroncarlyle.com/legalarticles/social-media-law-articles/li...
It echoes pretty much the same conclusions.
Malcolm Burrows
The moral of the story is to make sure your contracts, policies and staff handbook are up to date and flexible. That way the employer and employee know where they stand. The recent case of Bateman v Asda is really useful in clariying what can and can't be done
Some years ago, I was a news reporter for a large regional newspaper. As anyone in the media knows, a reporter is only as good as their contacts book; but who actually owns that? Mine was – literally - paid for by my employer and used exclusively for work. When I left, I was expected to leave the book behind.
At the time, I was a little annoyed by this. I had spent four years diligently cultivating the relationships that enabled me to do my job well and the book was proof of that. It was also the platform for my livelihood beyond this particular employer. Most of the contacts were regional and would be of little use to me where I was going. But some were potentially very useful indeed.
However, the contents of the book were also my employer’s business. In the end I got a colleague to photocopy the entire thing for me while I packed the contents of my desk into a box. As it happened, no-one had a particular problem with this - my work was less obviously commercial than, say, sales or marketing and virtually all of my colleagues had done the same thing at some point.
Now I work in a more overtly commercial role, I take a different view. The contacts I build while at work really are my employer’s concern. Nowadays, I suspect newspapers also ask their staff to enter contact details into a central, shared, database. Many, though, will keep their best contacts to themselves – there is enormous rivalry between colleagues on the same newspaper and secrecy is critical to certain kinds of journalism.
In either case, however, the information is held privately – in a contacts book, on a private database. Social media “contact books” are by their nature public, and even more so if they are also mingled with an employee’s friends and family. I'm not a lawyer, but this is a critical difference in my view and undermines any confidentiality or commercial interest defence. The fact that the information is public also undermines a ‘trade secrets’ defence – where is the secret if everyone knows the relationship exists?
The solution is simple, however: do not encourage or allow your employers to use a personal social media account for work purposes and vice-versa. And ensure they use private channels (private messaging facilities, email or phone calls) for commercially sensitive communication. Be absolutely clear on this. When the employee leaves, you own the work account, have access to the contacts and there is no public trace of commercially sensitive discussion.
Add a comment
Not registered? We'll create a new account for you when you add your comment