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Is your firm using LinkedIn?

Article Date: 31 January 2012

The courts have held that lists of email addresses contained in an employer’s email system are databases for the purposes of the regulations. But it is far from certain that LinkedIn contacts, held on a third party server and not backed up by the employer, would be ‘databases’ under the regulations. If they aren’t, employees could potentially retain LinkedIn contacts for their own benefit post-employment.

Under the Copyright and Rights in Databases Regulations 1997, databases compiled by employees in the course of employment are the property of the employer, unless there’s an express agreement to the contrary.  It would be unlawful to copy or extract these databases from an employer’s IT systems.

The courts have held that lists of email addresses contained in an employer’s email system are databases for the purposes of the regulations. But it is far from certain that LinkedIn contacts, held on a third party server and not backed up by the employer, would be ‘databases’ under the regulations. If they aren’t, employees could potentially retain LinkedIn contacts for their own benefit post-employment.

It remains to be seen whether the courts will view a client list as confidential and, therefore, protected once an employee has made it public on LinkedIn, viewable by each and every contact on that list.  In one case, First Conferences Services v Bracchi, an employee uploaded his employer’s client information to his LinkedIn profile with a view to using it for his own business post-employment.  He argued that the information was no longer confidential, because it was now publicly available on LinkedIn.  The court seemed to accept that argument.  However, the court held that employers would have a claim against former employees who uploaded information while still in employment, to benefit their own businesses post-termination, even if the confidentiality in the information had been lost.

Employers should:

  • Review existing policies on confidentiality and client lists to include information on LinkedIn
  • Ensure that post termination restrictions are sufficiently broad to prohibit solicitation using LinkedIn
  • Consider including a non-dealing covenant in employment contracts
  • Include a provision in employment contracts requiring employees to delete client contacts from LinkedIn on termination of employment, or even to delete their account in its entirety.

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