Barry Walsh, Partner at McDowell Purcell, explores the issue of who owns social media contacts created in the course of employment.

At a recent breakfast meeting, Barry identified social media contact ownership as an issue of increasing concern for many employers due to the risks regarding breach of confidentiality and restrictive covenants through the use of social media.

Ownership of social media contacts is not regulated by law and can be factually complicated, especially where many employees come to their employer with long established existing business-focused social media accounts such as LinkedIn and then add their new employer’s logo to assist creating new contacts which are then further built up over time.


Departing Employees Can Access Clients and Contracts

Breaches of employee confidentiality and of restrictive covenants (such as non-competition or non-solicitation clauses) have been long-standing concerns for many employers. However, in the digital workplace with the hugely increased use of social media by many employees, such risks have taken on a new dimension. Departing employees potentially have access to many hundreds of clients and business contacts through LinkedIn accounts outside of their employer’s direct control.

Whilst many employers have rightly embraced the business benefits introduced by social media and have enthusiastically encouraged employee activity on business related social media in the interests of winning business, they have been slow to come to terms with the corresponding confidentiality and competitive risks.


Contractual Protection Regarding Ownership of Social Media Contacts

At our breakfast briefing we spoke about the importance of introducing strong contractual protection for employers addressing ownership of social media contacts created during employment and restricting employee use of such contacts to compete with their employer. Such protection is best achieved through precise clauses in the contract of employment and a clear social media employment policy.

Careful drafting should assert an employer’s contractual right to ownership of social media contacts created during employment as a cornerstone of any social media policy. Appropriate cross-references should be made to confidentiality clauses and restrictive covenants in the contracts of employment. This serves to underline the employer’s view that any competing social media activity by employees could be a breach of contract.

There is no case law in Ireland directly dealing with the question of ownership of social media contacts, such as LinkedIn, created during employment but court decisions from other countries, particularly the UK, such as Hays v Ions (2008) give significant support to the notion that employers can control such matters through prudent contracts and policies:
http://www.bailii.org/ew/cases/EWHC/Ch/2008/745.html

Accordingly, employers should as a matter of standard include appropriate language in contracts of employment and introduce or update social media policies to deal with this important protection. Operational measures, where practicable, such as creation of new social media accounts on commencement of employment and the employer holding employee login and password details can also go some way to reducing risk.