Who owns your social media connections?
If you accumulate "connections, friends and followers" through websites such as LinkedIn, Facebook and Twitter in the course of your job, you may think that contact information belongs to you.
But a judgment issued by a United States court in March suggests employers could be within their rights to demand staff hand over details of their networks when they quit their jobs, according to John Hannan, a partner in Auckland law firm DLA Philips Fox.
Businesses might be able to prevent staff from updating their social-media contacts with details of their new employer and could even force them to hand over their accounts, he said.
That was most likely to be the case if their boss had first made that clear in an employment agreement or had picked up the bill for a "premium" social-media account, he said.
Pennsylvania District Court judge Ronald Buckwalter actually rejected a claim by online training company EdComm to a LinkedIn account set up by a former employee, Linda Eagle, in his much-anticipated judgment.
But Hannan said Judge Buckwalter indicated his ruling could have been different had the company paid for the account, made social-media part of Eagle's duties or ensured her LinkedIn account was built during work time.
Hannan also noted British recruitment firm Hays had succeeded in obtaining a court order in 2008 that prevented a
former staff member from using LinkedIn contacts that he accumulated during his employment to later solicit business for his own rival recruitment company.
LinkedIn, Facebook and Twitter did not respond to requests for comment.
Hannan said DLA Philips Fox was starting to see Kiwi employers take a strong interest and he forecast a growing number of tussles between bosses and staff over social networks.
"The organisations that have a particular interest are those that rely on sales networks, relationships and knowing their clients' business."
LinkedIn was likely to be on the frontline because it was a professional networking tool, he said. "You probably wouldn't want to have your business's connections ‘friended' on Facebook where they can see all the crazy things you do in your completely personal life."
The nub of the issue was that some companies that might in the past have managed clients through their own database or contact management system were now relying on staff to do so through social media, which might also blur into personal use.
"[LinkedIn] can be used in pretty much the same way as an employer would use a client relationship management database."
Firms would be within their rights to make it a condition of employment that their staff used LinkedIn and that contact information generated in the course of their employment belonged to the company, he said.
"You could have a specific clause that prevented ex-staff from sending out updates to those contacts or from changing their employment profile for a certain number of months after leaving the company.
"You might even say, ‘we are entitled to take over your account and control it for a period', three months or something of that nature. That has certainly been attempted in the US. If an employer is paying the employee's salary to develop this sort of network then the employer might at least be entitled to control access to it for a period."
Hannan said he was not aware of any formal disputes in New Zealand, but knew of "demands being made of employees".
In one case, an employer was aggrieved that a former sales intermediary had left to join a company in the same industry and had changed their LinkedIn profile to list their new employer. "All of their contacts on LinkedIn, which would include clients of the previous employer, get an update to say where that staff member now is.
"If that staff member is subject to a ‘restraint of trade' clause which says they are not to solicit or approach the clients of the former employer, it seems to me that doing that might well be enough to regard them as having solicited those clients," he said.
Wellington employment law specialist, Susan Hornsby-Geluk, who recently left law firm Chen Palmer to set up her own practice, Dundas Street Employment Lawyers, said the ownership of social networks created in work time was "a grey area" that had generally not been considered by employers.
She also forecast a growing number of disputes.
Employers could stipulate any use of work computers to engage in social media was to be only for work-related purposes and therefore, when staff left, their view was that those networks were the property of the employer, she said.
"If you have made those rules clear from the outset, the employee would understand that," she believed.
However, employers would be "pushing uphill" if they tried to assert rights that they had not established up front.
"Things like Facebook or LinkedIn accounts, even if they have been set up by an employee in work time, would generally be something which is personal to the employee."
It could be a fine line, she said.
"LinkedIn refers to people's current employment position, so it is arguable they have got the contacts they have got because of the fact of their employment.
"Have they built up those contacts on the back of the employer's business or has that been independently? Really, the question is: ‘Has the employee taken unfair advantage of their previous employer by taking client information and using that to the previous employer's disadvantage?' "
- Sunday Star Times
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