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Who owns a LinkedIn Profile – You or your employee?

Who owns a LinkedIn Profile – You or your employee?

By Wisewould Mahony
March 22, 2016

Social media is becoming an ever more significant networking tool for employers and employees alike.

Ownership of LinkedIn contacts uncertain in Australia

LinkedIn is particularly useful, as it allows users to make connections with prospective employers, business partners and clients. But who actually owns the LinkedIn profile, and perhaps more importantly, the connections made via that profile?

LinkedIn potentially muddies the waters between personal and work activities and this often presents significant legal implications with regard to the legal ownership of contacts, post-employment restraints and confidentiality.

There is yet to be a clear authoritative court judgment in Australia regarding ownership of LinkedIn profiles and their associated connection lists in the employment context.

Overseas cases shed some light on what’s possibly to come once there is an authoritative judgment in Australia on this issue.

Recent British cases suggest a tendency towards employers having ownership over certain LinkedIn profiles and connections.1 However, these decisions appear to have turned on the circumstances in which the LinkedIn account was created and operated. In Whitmar v Gamage, the UK High Court granted an interim injunction restricting three former employees from using LinkedIn accounts created and operated during their employment.2 Significantly, it that case, evidence showed that it was the responsibility of one of the employees to operate numerous LinkedIn accounts of Whitmar’s employees for the company’s benefit.3 This supported that the LinkedIn profiles, and their respective connections, were not of a personal nature but rather confidential information belonging to Whitmar. The interim injunction required the employees to grant all access rights to their employer and explicitly prohibited the employees from “using or exploiting or divulging to any third party … any information from [the LinkedIn accounts]”.4 Unfortunately, following the interim injunction, the case settled, preventing the Court from ruling definitively on the matter.

A contrary view has been favoured in the USA. In the case of Sasqua Group Inc v Courtney 5, the court refused to recognise that LinkedIn contact information was a protected ‘trade secret’ noting that it was publicly available through other mediums, was not protected by confidentiality agreements with employees and the public nature of LinkedIn profiles.

Watch this space…

It is difficult to predict how an Australian court will rule on this issue once required to do so but we consider that the employment agreement and workplace policies, and the nature in which the account is created and operated (including who pays for the LinkedIn account/services) will certainly come into play when determining LinkedIn ownership in Australia.

1. Hays Specialist Recruitment (Holdings) Ltd & Anor v Ions & Anor [2008] EWHC 745 (Ch) (16 April 2008); Whitmar Publications Ltd v Gamage & Ors [2013] EWHC 1881 (Ch) (04 July 2013)
2. Whitmar Publications Ltd v Gamage & Ors [2013] EWHC 1881 (Ch) (04 July 2013)
3. Ibid, [42]
4. Ibid, [4]
5. Sasqua Group Inc v Courtney (2010) WL 3613855 (E.D.N.Y.)

What employers can do

Given the legal uncertainty around ownership of LinkedIn profiles, employers should take active measures to protect their confidential information including LinkedIn connections by:

  1. Including specific terms in their employment agreements and policies to address the ownership of LinkedIn profiles and connections; and
  2. In suitable cases, pay for “premium” LinkedIn accounts so as to maintain ownership of their employees’ LinkedIn profiles and connections.

For more information about this issue or any other workplace matter, please contact our employment lawyer, Chris Pollard.

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