The British Are Coming…Maybe

Normally, other than admiring what I consider to be whimsical spelling, cutting edge wig fashion and artful phrasing, I do not pay much attention to legal developments in the United Kingdom.  I’ve made an exception for the case of Whitmar Publications Limited v. Gamage and Others decided by the High Court on July 4, 2013.  (Apparently, July 4th, for reasons unknown, is a work day in the UK.)

In Whitmar, the Court determined that once an employee leaves, contacts uploaded to a personal LinkedIn account could constitute company property. The Court was persuaded by the use, by Mr. Gamage, of his LinkedIn account to gain contacts from his employer to be used in setting up a competing business.

As pointed out in commentary provided by Stephen Musgrave, Of Counsel to the London firm Bird & Bird, the High Court left a good bit of gray area concerning the distinction between employer-maintained LinkedIn accounts and personal LinkedIn accounts which come to contain contact information derived from the employer’s records and business activities.

Regardless of which side of the Atlantic your company calls home, I would submit that the issue is one worthy of exploration and concern.  As an example, my firm’s LinkedIn page boasts 26 connections, while my personal LinkedIn account numbers 758. Similar discrepancies exist between my firm page and the personal accounts maintained by other lawyers in my firm.

If your business is relationship-driven (to reference a tired phrase), contact information constitutes some of your company’s most treasured assets. Companies need to encourage the formation of relationships with and personal attention given to customers. After all, people tend to hire people, not letterhead. So, on the one hand, we need to help our people form relationships, and on the other hand, we need to prevent those relationships from departing along with every employee who walks out the door.

Rock, meet hard place.

Because the law is not well-settled here (or anyplace else for that matter), there is no foolproof step-by-step guide to preventing former employees from retaining and ultimately using the social media contacts they gained while in your employ. Restrictive covenants, at best, work only temporarily, and often do not satisfactorily address the information gleaned, stored, and used online.

The answer, however, is to begin. Every employment agreement, personnel manual, and policy discussion should encompass social media. IT should be brought into the picture to develop a strategy for tracking the use and dissemination of your company’s most valuable information. You should not wait for an exit interview to determine the migratory path of your data.

As it stands now, you don’t have clear legal protection when it comes to the personal social media accounts of your employees. The best you can do, therefore, is to provide guidance, make your expectations known, and hope, in this one case, that when it comes to legal protection, the British are coming.

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