LINKEDIN ACCOUNTS

A guide on LinkedIn accounts from the employment law experts

Marjon Law, specialist employment lawyers is owner-led by Marc Jones, who is ranked and recommended in legal publications as a leading employment law solicitor, with over 20 years of experience practising solely in employment law.

Unlike other free social networking sites, LinkedIn requires connections to have a pre-existing relationship or to be introduced by another member.

Basic membership for LinkedIn is free. However, premium subscriptions can be purchased to provide members with better access to other members in the LinkedIn database.

(1) Who owns the account?

A LinkedIn account is generally considered to be personal to you and does not belong to your employer.

Clause 2.2 of the LinkedIn User Agreement states:

‘Members are account holders. You agree to: (1) try to choose a strong and secure password; (2) keep your password secure and confidential; (3) not transfer any part of your account (e.g., connections) and (4) follow the law and our list of Dos and Don’ts and Professional Community Policies. You are responsible for anything that happens through your account unless you close it or report misuse.

As between you and others (including your employer), your account belongs to you. However, if the Services were purchased by another party for you to use (eg Recruiter seat bought by your employer), the party paying for such Service has the right to control access to and get reports on your use of such paid Service; however, they do not have rights to your personal account.’

Some practitioners argue that an employer could create a LinkedIn account on your behalf during the course of your employment (defined as the legal consideration of all circumstances which may occur in the performance of a person’s job, especially during a period of time where specific objectives are given by the employer to the employee), including providing the password and creating the content on the account and that the account would ultimately belong to the employer.

However, this argument appears to be in breach of the User Agreement as an account cannot be shared. If your employer has the password to an account then they would be able to access it and, although this would be in breach of the User Agreement, they could download the connections (which is a facility available in LinkedIn).

(2) Who owns the connections?

The position of LinkedIn connections is not so straight-forward.

Arguably, if the connections were made during the course of your employment and created for the benefit of your employer and accessed through your employer’s IT system, then they are the property of your employer. However, if a LinkedIn account belongs to you then your employer cannot access your connections under the User Agreement. Generally, the connections that were made outside the course of your employment would belong to you.

LinkedIn connections could be viewed, depending on the nature of your role and your employer’s business, as ‘confidential information’. Generally, the law provides that where confidential information is obtained in circumstances that indicate an obligation of confidentiality, any unauthorised use of the information may give rise to a claim for an injunction and/or damages for breach of contract. This would be the case in the absence of any express provision relating to LinkedIn connections. However, this is unlikely to be something which the courts would uphold, given that connections’ details are publicly available on LinkedIn. Courts are likely to restrict this type of protection to more traditional confidential information or genuine trade secrets.

Some practitioners claim that employers could argue that LinkedIn connections made by you during the course of your employment amounts to a database which, if used without authorisation, would infringe on your employer’s right as the owner of the database, relying on the Copyright and Rights in Databases Regulations 1997. This is certainly an argument, but a court would need to be convinced that your account was created for a specific purpose and did not contain connections that were personal to you. In the absence of written evidence, this could prove difficult.

(3) What can an employer do to protect the connections you have made?

Arguably an employer’s best protection in relation to LinkedIn connections, would be to include express written provisions in an employment contract or staff handbook. A common practice these days is to include a warranty in an employment contract, which states that you acknowledge all LinkedIn connections made during the course of your employment are regarded as the property of your employer and you will be required to delete such connections on the termination of your employment. However, depending on how widely those provisions have been drawn will depend on how enforceable they may be.

In the absence of any express provisions relating to LinkedIn connections and those connections not being viewed as confidential information, would your employer be able to rely on post-termination restrictive covenants to prevent you from contacting your connections after your employment ended with your employer? The courts have decided that a former employee’s LinkedIn announcement that they had a new role could not be considered an attempt to solicit their former employer’s customers, many of whom the former employee was connected to on LinkedIn.

This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.