One of our key employees has handed in her notice. She has made a huge amount of contacts on LinkedIn during her time with the company and we do not want her to bring that information with her to her new employer, who competes with our business. How do we handle it?

Jennifer Cashman writes:

The question of ownership of LinkedIn contacts is determined by many factors, to include the following:

* Are there contractual clauses or a Social Media Policy in being?

* Who created the account containing the contacts and why was the account created?

* Was the account created prior to or during employment?

* Has the employee included the employer logo/brand in the account?

* Are the contacts primarily personal or professional?

It is important to note that LinkedIn’s own terms and conditions provide that ownership of a LinkedIn user account remains with the individual who owns that account and therefore at its most basic level, the ownership of the information on that account rests with the employee, from the perspective of LinkedIn. Therefore, the employer will have to establish some contractual terms in place between the employer and employee which governs the ownership of that information.

There has been a useful recent case in relation to this issue which is not an Irish decision but is a decision of the Jersey Courts which may have persuasive authority here. The case in question is the case of Nautech Services Limited –v- CSS Limited and Others (2014). This case concerned two former employees who took significant information from Nautech’s databases for their competing company. Nautech obtained a Court Order in April 2013 preventing the use of the information. Nautech believed the information had been used and brought an action against the new company, CSS, and the three employees concerned.  

Nautech’s argument was that both it and the new competing company, CSS, operated in a niche area and its contact database was an integral part of business operation and success. There was no publicly available database and that Nautech database of customer contacts was confidential information belonging to Nautech. CSS argued that such contact information could be found quite easily via social media and the internet and that no proprietary interest should be inferred on Nautech’s behalf. However, the Court rejected that argument due to the lack of a centralised public resource.  

The Court found that the database of client contacts was also protected by Jersey’s copyright laws. The Court refused to extend this copyright and confidentiality protection to the employee’s LinkedIn account. This was despite the fact that Nautech paid for the employees to have a premium account and the employee used a work email address to access the LinkedIn account. The Court based the decision on the LinkedIn User Agreement but indicated that had the employer contractual provisions in place to say otherwise, the decision might have been different.  

In that regard, we must look to the case of Ardas Health, LLC –v- Nankivell which is a US case in 2011. In that case, the Court granted a company’s Motion for injunctive relief and ordered a former employee to return log in, password and other social media access information. The Court held that Ms Nankivell was hired as a video and social media producer and in that capacity maintained websites, blogs, social media pages, passwords and log in information for related companies. At the start of her employment, she signed an Agreement which provided that all work created or developed by her “shall be the sole and exclusive property of [the Plaintiff] in whatever stage of development or completion”.  

When she was terminated, Ms Nankivell refused to return certain confidential information to the company. As a result, they were unable to access several of their online accounts and websites, to their detriment. The Court held that based on the Agreement, “It is uncontested that Plaintiffs own the rights to the Access Information. Defendants’ unauthorised retention of the information may therefore form the basis of a claim of conversion”. For this reason, it held that Ms Nankivell must turn over the log in, password and other access information.

It is important for employers to note that disputes over the ownership of accounts and contacts is governed by employment contract and common law principles. There is no Irish case on this issue to date. The LinkedIn terms and conditions state that ownership is personal to the account holder, as stated above. Therefore, LinkedIn accounts should be opened with the company address, using company photographs and the company should also dictate the text of the profile to be used in the account. It should be stated specifically in the employee’s contract of employment and related policies that the contacts created in that account during the course of employment belong to the employer.  

There are a number of practical steps that employers can take in this regard as follows:

* Copy information to your organisation’s internal contacts database.

* Utilise restrictive covenants where appropriate.

* Make technical change with IT where it is appropriate to do so.

* Ensure that you have non-solicitation and non-dealing clauses in appropriate restrictive covenants.

* Prevent employees from using business contacts obtained during employment.

* Amend all contracts and policies to take account of this.

* Specify the content must be surrendered upon leaving.

* Specify that passwords must be changed upon leaving.

* Specify that employees must not add work related contacts to personal social media accounts.