Social media: Ownership
Social media was, is and will always be a hot topic. It surprises us every day and has great, far reaching potential. When social media started to boom, there were initially discussions as to whether it was a positive or negative marketing resource. However, more recently, debates have shifted towards establishing who owns the information and contacts on social networking sites such as linkedIn.
In the USA, one company is currently suing an employee for taking his Twitter followers with him when he left. His tweets varied from indiscriminate comments to specialist views on products connected with his sector of work. The company has said that it has invested highly in growing its followers and brand awareness via social media and it wished to pursue action against the employee in order to protect confidential information, intellectual property, trademark and brands. It has been suggested by an American law firm that in order to succeed in its claim, the company will need to establish that a list of Twitter followers constitutes a trade secret.
Although this is not a UK case, it does highlight the potential pitfalls of social media and should act as a warning to employers to protect against certain situations as they are increasingly likely to arise in the future.
LINKEDIN LEGAL ACTION
Many employees will have a LinkedIn profile page. Some profiles are very basic with little information whereas others are representative of CVs. Recently, a human resources executive claimed he had been constructively dismissed following a dispute with his employer over something which was included within his LinkedIn profile. He had posted a profile which was effectively his CV and had selected the box “career opportunities” as a point of interest at the end of his profile. On spotting this, his employer gave an immediate order to remove his CV from the website and was called to a disciplinary hearing. The employee resigned. The employer argued at Tribunal that the employee was in breach of company policy which banned employees ticking the “career opportunities” box. The employee has stated that he was one of many who had selected this box but was the only one facing disciplinary action.
The Tribunal’s decision is yet to be published but the case itself is a further reminder to employers that they should have a clear policy on social media, the policy should be communicated to employees and that there should be consistent treatment of employees as far as possible.
PREVENTION IS BETTER THAN CURE
Employees who have access to and direct contact with clients of the business are likely to have restrictive covenants contained within their contract of employment. However, many restrictions will not address social media. Employees who use social media sites may well try to utilise these once they have left employment to solicit their former employers’ clients. This may not be obvious and can happen without the employer knowing. In order to reduce the risk of this happening, employers should consider enhancing the drafting of their restrictive covenants to specifically include references to social media. Alternatively or in addition, employers may wish to consider adopting a policy which requires its staff to delete client contacts from LinkedIn upon leaving.