With the rise of businesses using social media and online networking
sites to promote their brands and to contact their clients, Harriet
Broughton, Employment Solicitor at Bevans solicitors, takes a look at
the risks facing businesses.
It is long established that employers can protect their confidential
information, including client contacts, through the use of
confidentiality clauses and restrictive covenants. So, with careful
drafting, employers can prevent their outgoing employees from
downloading client contacts from an internal database, or prevent the
outgoing employee from contacting or dealing with customers for a
reasonable fixed period of time after termination of employment. An
employee who acts in breach of their contractual restrictions can be
sued for damages or the former employer can seek an injunction
preventing any further breaches.
Whether an ex employee has acted in breach of contract will often turn
on the definition of “confidential information”. Contact details, which
may well be publicly available, once retained in an internal database
or contact list are likely to be treated as confidential information if
the information is kept secure by the employer. That being said, where
the employer publishes a list of its customers or contacts on its
website, it is unlikely that the information will be treated as
confidential by the courts.
This then brings us to the question of online networks. Many businesses
are encouraging their employees to create an online profile with sites
such as Linkedin. Here a publicly available list of contacts and their
details are generated by the employee. These contacts may be obtained
during the course of the employee’s work, but may also include personal
or historic contacts. As the contact details are available publicly,
does the contact information lose its confidentiality, or does it
remain the property of the employer? Are the contacts clients,
prospective clients, or simply contacts?
As yet, the courts have not had to deal with these questions.
Frequently disputes of this nature are settled confidentially before
they reach the courts.  One reported case related to a recruitment
consultant’s use of Linkedin. The recruitment consultant was encouraged
by his employer to join Linkedin. The employer alleged that the
recruitment consultant had deliberately migrated contacts from the
confidential database to Linkedin, and that the information remained
confidential. The recruitment consultant argued that, when the Linkedin
invitation was accepted by the contact, it ceased to be confidential as
the contact’s details could be seen by all other contacts. The court
did not deliver final judgment on whether or not the Linkedin contacts
remained the confidential property of the employer or otherwise, but
did require pre-action disclosure of certain documents which suggested
that, at least in principle, the court would be willing to declare such
contacts the property of the former employer.
Whilst Linkedin is geared towards business networking, businesses and
employees are also making use of social media such as facebook and
twitter, where the same issues of confidential information and contact
details arise.
In an American case, an employer is suing its former employee after he
“took” his 17,000 twitter followers with him when he moved jobs. Here
the employee worked for a website offering reviews of mobile phones;
his twitter “name” included his employer’s name. Whilst employed, the
employee used twitter to offer specialist views on mobile phone
technology, which was arguably in the course of his employment.
Presumably at least some of the 17,000 twitter users followed the
employee because of his connection with the employer. Can the employer
protect these contacts, and prevent the employee going to a competitor
with them? Again, the answer is unclear. Unlike Linkedin, there would
be no invitation for the twitter user to follow the employee, the
twitter user would be free to choose to follow whoever he or she
wanted, and may have had no business dealings at all with the employer.
Had it not been for twitter, would the employer have had these contacts
at all, and therefore can their details be treated as the company’s
confidential property?
In a story closer to home, Laura Kuenssberg, the political
correspondent transferred her twitter account from the BBC to ITV when
she changed jobs. This caused a debate over who “owned” the twitter
following – was it the BBC or the reporter? The BBC had no specific
guidelines on the ownership of twitter accounts, and it would appear
that it did not want to be the first to test the water in court.
The nature of confidential information on Linkedin remains ambiguous,
although an employer can protect itself by having clear policies in
place, and which are communicated to staff, dealing specifically with
social media and online networking, and by having clear confidentiality
clauses, proprietary ownership and restrictive covenants in employment
contracts. The drafting of such documents, especially contracts of
employment, is critical if they are to provide any effective protection
to an employer.
Aside from protecting its confidential information, employers have much
to consider when using, and encouraging its staff to use social media.
Cases of dismissal following inappropriate facebook activity are
becoming more frequently reported. In one similar case, an employee
resigned and claimed constructive unfair dismissal after being asked to
remove his interest in “career opportunities” from his Linkedin profile.
As the lines blur between professional and personal lives, employers
should consider what effect inappropriate tweets, pictures, and
comments may have upon their brand image, and potentially whether they
and/or their employees could be infringing defamation or discrimination
laws. An employer will also want to ensure that other confidential
information, in addition to client contact details, do not enter the
public domain.
A clear policy on use of social media for business and personal
purposes should assist any employer in disciplining staff and
protecting its brand.
For advice on social media policies or employment contracts, please
contact Harriet Broughton of Bevans Solicitors on 0117 923 7249.

Visit www.bevans.co.uk