Social media has become a fundamental part of business development. Many companies now encourage employees to utilise social media as a marketing tool. Inevitably, an employee who uses social media for business purposes will accumulate contacts.
Businesses now rely on professional networking sites, such as LinkedIn, as channels to source new clients. If an employee uses LinkedIn during the course of their employment, what rights does the employer have to the contact information acquired?
As an employer, you may be able to argue that contact information held on a departing employee’s LinkedIn account belongs to you. This is complex and very fact specific. For example Linkedin terms and conditions (agreed when an account is opened) state any Linkedin account is owned personally by the user. In order to succeed in this, the employer will need to show that the information was obtained during the course of employment with that company. This can be difficult to prove. Individuals often set up a private social media account and also use it for business purposes. They keep the same social media account and simply update their account information when they find new employment.
What can you do to prove ownership?
Importantly, a clear difference needs to be distinguished between personal use and use for business purposes. If an employee has used social media in the course of their employment, then the contact information acquired is likely to belong to the employer. However, an employer should do all they can to separate personal use and use for business purposes.
It is possible to insert a social media clause into the employment contract. The employer can require their employees to use a specific social media account to generate new business. This can be an account the employer has created or has control of. Having a separate account will help to define which contact information belongs to the employer.
Additionally, an employer is entitled to require the employee to keep a record of contacts added during their employment. In doing so, the employer will be able to identify which contacts were acquired during the course of their employment. Both measures can be made contractual terms which the employee agrees to before their employment commencing.
A term in the employment contract may also require the employee to delete connections with all contacts made during the course of their employment. If an employer wishes to include this, it would be beneficial to draft it alongside a clause requiring all contact information to be saved into a central database belonging to the employer.
Measures like those above will help an employer to maintain control of its data and information. By cementing the employer’s rights in the employment contract, the employee is made aware of their obligations. If an employee does not comply then the employer has greater legal protection should an employee breach those terms.
An employer should review the terms of its employment contracts. If social media is a fundamental part of business development, it may be worth inserting specific clauses. Additionally, employers should be careful not to breach the employee’s right to privacy.
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Harry Taylor was a J B Montagu Scholar at Middle Temple. He was called to the Bar as a non-practicing barrister in 2014. Before joining Helix Law Harry gained commercial experience at a Tax advisory firm. Harry is currently studying for a Masters degree in Employment Law.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.