In the recent case of Whitmar Publications Ltd v Gamage and Others, the issue of personal and professional use of social media came under the spotlight, and in particular the issue of a Linkedin password.
Whereas we have seen a lot of media coverage about the use of Facebook and Twitter, and the inappropriateness or otherwise of an employee using these social media tools, there has been relatively little case law surrounding the professional networking site Linkedin.
Mr Gamage, Ms Wright and Mr Crawley had all been senior employees of Whitmar Publications Ltd. The employees were all subject to a letter of engagement stating that during their employment (naturally) they would be subject to Whitmar’s terms of employment. In January 2013 all three employees resigned from their senior positions and stated that it was their intention to set up a competing company, Earth Island.
However, it later transpired, after their departure, that their new company had been incorporated on 31 August 2012.
It was also alleged that during the time they were still employed by Whitmar, they had solicited or attempted to solicit a number of Whitmar’s clients and staff; used confidential company information to create media packs and guides for Earth Island; used Whitmar’s Linkedin groups to market their new company; and had taken a number of circulation and client databases with them.
When the employees were challenged with regard to the use of the Whitmar-run LinkedIn groups, Ms Wright asserted that the Linkedin groups were something she did in her own time on a personal level and were not related whatsoever to Whitmar’s business. She not only refused to give up the username and password to Whitmar, but also continued to use the Linkedin account and all connected members after her departure.
Whitmar began proceedings against their former employees. They claimed damages and sought injunctions from disclosing and using what they perceived to be confidential company information. Whitmar’s application for an injunction was upheld by the High Court, pending a full trial, agreeing that there was strong evidence that its former employees had in fact been actively competing with Whitmar for over 12 months before their resigned.
The Court agreed that the databases were confidential information owned by Whitmar and that the information which had been taken was sufficient to provide the new company with a competitive advantage.
The Linkedin groups which had played a part in the B2B marketing and networking of the new business were discussed before the High Court, in particular in its usefulness for the three former employees to make new contacts and develop new business. The Court decided that Ms Wright was obligated to hand over access details for her Linkedin account in order that Whitmar could assess any potential damage and also amend the Linkedin groups’ security settings.
The decision in this case is thought to be one of the first where a Court order has been given for an employee to give up their personal login details to an employer in the light of misuse or misappropriation of a company Linkedin account.
Notwithstanding that the LinkedIn account had been set up by Ms Wright in her own name, and would have inevitably contained contacts which were personal to her (friends, family etc) and nothing to do with Whitmar, the Court concluded that, on balance, the Linkedin account, its contacts and activity therein were the property of Whitmar.
Employees should therefore be aware that if they are asked to set up a social media account during the course of their employment, be it Linkedin, Facebook or Twitter, in order to market and advance their employer’s activities, the account and the contacts therein may well be proven to be the intellectual property of the employer.