First ever injunction over employee misuse of LinkedIn connections

In July, the High Court decided to issue an injunction ordering a former employee to hand control of LinkedIn Groups she administered on her employer's behalf back over to her employer.

In the judgment, the court held that, while David Gamage (sales manager) Susan Wright (managing editor) and Steven Crawley (production editor) resigned from Whitmar Publications in January 2013, they set up a new company, Earth Island, four months prior to this, with the intention of competing:

"Wright was responsible for dealing with LinkedIn groups as part of her employment duties at Whitmar. Those groups operated for Whitmar's benefit and promoted its business, and Wright used Whitmar's computers to carry out her work on the LinkedIn groups".

"On the 4th February 2013, Whitmar's LinkedIn Groups appear to have been used as the source of e-mail addresses for Earth Island's press release in which a large number of individuals were invited to attend 'an informal event' at a bar in Leicester Square."

The court held that this was improper use of Whitmar's confidential information.

As a result, Whitmar was granted a "springboard injunction", which is a ramped-up  injunction used specifically to prevent a former employee who has used confidential information to their own advantage from gaining a head start in competition with their former employer.

What's so unusual about this?

Where the LinkedIn Group was owned and maintained by the employer, the court was willing to maintain that even though the connections had been made to the employee's LinkedIn profile, they were actually regarded as belonging to the employer, so these connections are therefore protected as the employer's confidential information.

[This isn't the final hearing – the injunction was granted pending the final trial – we'll update this post when the final decision has been made.]

Contradiction of LinkedIn's T&Cs

LinkedIn's terms and conditions, however, actually state that ownership of a personal profile on the site is personal to the account holder, not the employer – so this case is in direct contradiction with those T&Cs.

While the decision is undoubtedly significant, the forecast is uncertain – while the High Court was prepared to grant Whitmar's order, the judgment didn't give a detailed analysis of how the LinkedIn accounts in question operated in practice, so it is unclear how far the courts will take this.

In the case of a LinkedIn Group being largely controlled and maintained by an employee on behalf of an employer, the outcome so far of the Whitmar case suggests that the Court is more inclined to pass judgement in the favour of the employer.

So where do we all stand?

It's been suggested that employers who want to protect their LinkedIn connections as company collateral should:

• Encourage employees, as part of their roles, to establish LinkedIn accounts and maintain them with company-branded content;
• Ask employees to brand their profile as far as possible in a manner consistent with the employer's website – for example, using a company-issued profile photo;
• Tell employees what password to use;
• Introduce a contractual condition which stipulates that employees must surrender content and change their LinkedIn password (because the employee has been building a contacts list on behalf of the employee during working hours, and such lists belong to the employer).

While a LinkedIn profile is professional and thereby tacitly linked to our place of work, is it right for employers to own them?

They are, after all, personal accounts used to promote the individual and their skills and professional profile, and are used by individuals to network with other business professionals and businesses.

Should we have to surrender our profile (and therefore our contacts list) every time we leave a job?

Then again, if profiles are used for networking in work time and in the name of the employer, then does that mean that it's only fair that they are owned by the employer?

We'd like to know what you think about this, and whether you're speaking as an employee or an employer. Leave us a comment…

BY Fi Dunphy AT 9:42am ON Monday, 2 September 2013

Fi is an experienced member of the social media team and has worked on content and social media strategies for large multinationals and SMEs alike. She works closely with Branded3's SEO, content, design and development teams to ensure that the social media strategies, content strategies and online PR campaigns she creates feed directly into the client's end goal. Follow @fidunfi on Twitter