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Who Owns Your Social Media Contacts. . . You Or Your Employer?

LinkedIn and Twitter have become key networking and marketing tools for savvy companies and professionals alike. The main advantages of having a large network of social media connections are engagement with prospective customers and clients, attraction of new business and projection of an innovative image. So perhaps unsurprisingly, many professionals are now encouraged to use LinkedIn and Twitter in their employment.

We recently looked at who owns your digital real estate but who owns social media contacts when employment comes to an end?

Legal ownership of contacts
Legal ownership of social media contacts is unclear. LinkedIn and Twitter terms of use indicate that connections that exist between people belong to the account holder.

In 2013, the United Kingdom High Court considered a case where a number of former employees used certain LinkedIn contacts to market a rival business venture. In this case, the court ruled in favour of the employer retaining the connections, recognising that breaches of confidentiality and good faith had occurred.

Meanwhile, an upcoming case in the NSW Supreme Court is likely to indicate the Australian position. This case involves the Naiman Clarke recruitment company pursuing a former employee for breaching confidentiality. The employee is accused of using the company’s client database to increase the number of her contacts from 150 to 500 in the month that she resigned, and benefiting from these connections in her subsequent employment.

The difficulty with these cases however, is that they involve the breach of an existing duty of confidence. Any remedy provided by the court is likely to turn on the dishonest conduct or breach of contract, and will be of limited value to ownership of social contacts generally.

Will ownership of LinkedIn contacts be treated the same as Twitter followers?
Twitter is less formal than LinkedIn, and also integrates more fluidly with the social sphere. This suggests that a dispute over Twitter followers may be more complex to decide. In 2011, a United States court considered ownership of Twitter accounts and related passwords (essentially, followers) in the PhoneDog Case. In this case, the employer invested heavily in marketing the Twitter account. However, the matter was ultimately resolved by mediated settlement with the employee retaining the followers.

What can an employer do to retain contacts when an employee leaves?
Carefully drafted employment contracts remain the best protection for an employer.

A social media policy is a must for employers encouraging or endorsing the use of social media by their employees. The expectations on employee use of LinkedIn and Twitter should be clearly communicated, providing guidance and setting out a position in relation to the ownership of contacts.
Restrictive covenants are another option. These are common in employment contracts where there is potential for a conflict of interest to arise between the employer and an outgoing employee.

But employers should be wary that overly stringent policies or restrictive covenants could backfire. Unreasonable terms may not be enforced, while rumours of nasty policy may spread rapidly through social media world. Instead, employers should impose reasonable restrictions on post-employment conduct.

What can an employee do to retain their contacts?
Leaning toward the side of caution may be best for employees seeking to retain their connections. Avoid adding company contacts your social media profile unless you have a direct connection, or a genuine reason to connect. For employer connections that become your own, you should keep details of your introduction to establish that you connected in a personal capacity, and not as a representative of your employer.

Given that the requirement for social media policies is relatively new, it may also be possible for you to negotiate the terms with a prospective employer.
Also, avoid using an employer’s name or likeness in a personal social media account name. Not only would this jeopardise your professional connections once you leave, but this type of free riding could also amount to trade mark infringement, passing off under the common law, or misleading and deceptive conduct under the Australian Consumer Law.

Ultimately, companies should accept that when employees leave, they take connections with them. While collaborative social networking can benefit the reputations of employers and professionals alike, the reality is that disputes over connections are inevitable. Given the legal uncertainty around ownership of contacts, employers and employees would be wise to agree on a policy early on, to establish the ground rules for the use of social media use in the workplace.