LinkedIn contacts. Whose property are they anyway?

The internet era has brought many changes to the way that business is conducted.  One such change is the replacement of the Rolodex with the online networking site LinkedIn.

The basic purpose of LinkedIn is to make professional connections with others who have a LinkedIn account. During employment, this can be done in a number of ways but most often, employees will add connections by searching for a specific business contact and then inviting that person to become a LinkedIn connection.  Alternatively, they may use the “people you may know” function based on existing connections.

Another way of obtaining more connections is for the employee to upload contacts from their e-mails or from other databases whereupon those contacts who have a LinkedIn account of their own, are invited to become a connection of the employee on LinkedIn.  Details of these contacts will then be available to the employee when his employment terminates.

The employee will be able to inform all of their LinkedIn contacts (both those who existed pre-employment and those who were added during their employment) of the fact that they are leaving the employer to join a competing business. Some employees might do this before they leave the current job; others will do it after they have left.

This information can easily (and in the case of a profile update, automatically) be conveyed via LinkedIn itself.

In the absence of relevant post-termination restrictions, are there any limits on the use which the employee may make of their LinkedIn connections following termination of their employment?

Only “trade secrets” can be protected by means of the implied duty of confidentiality after termination of employment. It will be necessary to consider all the circumstances of each particular case when deciding if a particular piece of information could be classed as a trade secret but one factor to consider is whether the information is available in the public domain.

In relation to information available from LinkedIn, the answer will depend on the privacy settings adopted by the employee who has the LinkedIn account. Each account-holder elects the appropriate privacy settings whereby:

(1) their connections are seen only by them, or by those with whom they share the same connection (“closed”); or(2) each connection can be seen by every other connection (“open”).

Where open privacy settings are adopted, it can be argued that any confidentiality in the client details has been lost as a result of their being posted on LinkedIn.  If that is correct, it may be difficult for the employer to maintain that the employee cannot use those client details following termination on grounds of confidentiality. The employee is likely to argue that the client details are not confidential as they can be found in the public domain.

There are, as yet, no cases dealing specifically with the ownership of confidential information/contacts on LinkedIn but in the case of Pennwell Publishing (UK) Ltd v Ornstein the High Court held that the employer’s Outlook record of client contact information was a database within the meaning of the Copyright and Rights in Databases Regulations 1997.  However, it does not necessarily follow that an employee’s network of contacts on LinkedIn is a database.

For now, employers should take care when drafting employment contracts for all employees who are likely to have direct client contact.  Specific care should be taken in relation to confidentiality and post-termination restrictions.

This article was written by partner James Anderson