Social media policies and legal implications are in a state of flux as the law struggles to keep with the developments in this fast growing area. I recently came across this blog which addresses particular issues associated with Linked In which I thought I would share with you
Employers should not wait for the law to develop on social media
Many employers actively encourage their employees to use LinkedIn. With around 11 million UK users, it is the world’s largest professional network and can be greatly beneficial when promoting a business. However, this isn’t without risk and there are a number of issues that HR professionals need to consider when it comes to employees using social media networks at work
Who owns an account?
The network’s membership terms state that individuals own any LinkedIn account registered in their name and should not let any third party user have access to that account or their password. Although these terms have not been tested in the courts, they do present a potential challenge to those employer policies which require employees to use a corporate account belonging to the employer, rather than their own personal account.
Who owns the connections?
Many employers believe that connections made by employees and added to LinkedIn accounts during the course of their employment belong to the business and increasingly draft their social media policies on this basis. This approach can include the idea that any connections of this type should be deleted after the employee leaves the business.
Again, this has not been tested in the courts yet and until there is clear guidance on what the procedure should be, employers should identify practical ways to deal with the risks. They could, for example, make sure an employee’s connections are transferred to an internal database. Although this doesn’t necessarily prevent a former employee from misusing the information, it does ensure that once the employee has left, the employer has access to the connections and isn’t left in the dark.
Can confidential information be protected?
When former employees do exploit LinkedIn contacts made during their employment, by trying to poach existing clients or customers, for instance, employers often try to rely on the law relating to confidential information. However, given that contact details are publically available on LinkedIn this is something the courts are unlikely to uphold.
Companies may find more success with the Copyright and Rights in Databases Regulations 1997. This legislation may enable them to argue that LinkedIn connections made by employees during their employment make up a database and, as the owner of the database, the employer’s rights would be breached if the data was used by the employee without authorisation.
Will restrictive covenants work?
Employers can impose post-termination restrictions on their employees by including appropriate terms in their employment contracts. These restrictions can cover poaching clients or working for a competitor, but do not always explicitly refer to LinkedIn.
This was considered during a recent court case which had to decide whether a former employee’s LinkedIn announcement about getting a new job could be considered as an attempt to solicit the former employer’s customers, many of whom the employee was connected to on LinkedIn. The court found that this did not amount to solicitation, but the outcome may have been different had the restriction specifically referred to conduct on LinkedIn.
What can employers do?
Employers need to bear in mind that the legal protection available at the moment when dealing with a former employee’s misuse of LinkedIn is not entirely adequate. But, while case law is developing in this area, there are steps employers can take to give their business the best possible protection.
They should put in place a social media policy which makes clear that any connections made by the employee during employment belong to the employer. They should ensure that connections are recorded internally on a separate database and deleted from any accounts when an employee leaves, and should draft restrictive covenants to cover the circumstances referred to above.
Employers should also encourage employees to use corporate LinkedIn accounts, rather than personal accounts, as then they can insist these remain the property of the employer and must be handed over when the employee leaves the business.
If you do nothing else at present make sure you have a social media policy in place. If you need help in this or any other area of hr please contact me at firstname.lastname@example.org or on 0203 640 7748