Social media, smartphones and the workplace

Are you doing enough to protect your company’s IP in the social media age? Luis Izzo outlines what’s at stake

First the way we communicated changed (‘like’, ‘share’, ‘regram’). Then the way we socialised changed (‘swipe right’). Now the workplace has changed.

The emergence of social media has changed the way in which employees build networks. Any employee seeking to establish a brand identity is using platforms such as LinkedIn, Instagram and Twitter as a primary means of connecting with the marketplace.

Who owns contacts on a social media platform?
Determining who owns contacts gathered on a social media platform is a difficult task and one that has received very little judicial consideration in Australia.

The best guidance comes from overseas.

In the US Federal Court case of Eagle v Morgan, an employee used her LinkedIn account to connect with over 4,000 people while employed by a company she co-founded, Edcomm. When the employee left her employment, EdComm changed the password, profile picture and other details on the LinkedIn account and continued to use it. The employee successfully sued the employer for invasion of privacy and misappropriation of identity, and obtained findings that the LinkedIn account belonged to her.

By contrast, UK precedents have been more generous to employers:

• In the UK High Court case of Hays v Ions, an employee was accused of merging confidential business contacts onto his LinkedIn account and then using the contacts for his own rival business. The employee alleged that once the contacts were in the public domain on his LinkedIn account, they were no longer confidential. Not convinced by this argument, the Court granted orders to Hays for the return of the client information.
• In another UK High Court case, Whitmar Publications Limited v Gamage, Whitmar obtained orders compelling an employee to hand over control of LinkedIn groups the employee managed during his employment. Crucial to the Court’s ruling was the fact that the employee was responsible for operating the groups for Whitmar’s benefit as part of her employment and that the employee used Whitmar’s computers to maintain the groups.

Having regard to the above cases, it is apparent that if a personal LinkedIn account or a Twitter or Instagram account is opened by an employee, it will be very difficult for an employer to assert ownership over the actual account. This is because the employee personally owns and registers the account in their own name. In the case of LinkedIn, it is in fact impossible to register a LinkedIn account in the name of a company.

However, the question regarding whether the contacts collated on a social media platform belong to the employee or can be deleted/ returned to the employer will be highly dependent on the circumstances under which the contacts have been gathered. The more the contacts relate to work, or are collected during work time or using work resources, the greater the employer’s ability to assert some type of ownership over the contacts at some point in the future. 

So what should employers do to protect their IP? 
Despite the infancy of this area of law, there are simple steps that employers can take which will certainly improve their ability to protect their own IP:

1. Have a clear social media policy. Where social media is to be used for business purposes, the policy should set out the company’s ownership of the information collated in the accounts and provide directions regarding the transfer of login details on termination of employment. The employee should be asked to acknowledge their agreement with any such policy. The social media policy should also address behavioural standards in relation to social media usage.
2. Wherever possible, ensure accounts are created in the company name, with company branding.
3. Where an account cannot be set up in the company name, require employees to use their company email addresses and company branding when setting up accounts for the benefit of the business, making it clear that any such accounts are for business purposes only.
4. Require employees to execute appropriately drafted post-employment, noncompetition and non-solicitation restraints to prevent employees using their employer’s contacts to compete against the employer in future.

 
Luis Izzo is a Director at Australian Business Lawyers & Advisors (ABLA). Serving business and only business, this legal and advisory firm is trusted by the Australian Chamber of Commerce and Industry and is the leading voice for industry in the Fair Work Commission. Contact Luis on 02 9458 7640 or [email protected] if you have any questions about matters raised in this article.