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A reminder that employers do have an interest in their employees’ use of social media

Earlier this year, the High Court had to decide on an application for interim relief in a case that will provide comfort to employers about their ability to prevent employees and ex-employees from using the employer’s social media databases to gain an unfair competitive advantage for the employer’s competitors.

The facts of the case

The case was Whitmar Publications Ltd v Gamage and others [2013] EWHC 1881 (CH)  and concerned ex-employees’ use of the Linked-In contacts that had been built up during the employees’ employment. Whitmar is a publishing company and the various employees who ended up being defendants in the case all resigned from their employment simultaneously and announced their intention to set up a company in competition with Whitmar called Earth Island.

Whitmar subsequently discovered that the employees had set up Earth Island over six months’ earlier and had allegedly used the time since then to (amongst other things) solicit Whitmar’s customers and poach it’s staff and exploit Linked-In groups managed on behalf of Whitmar to further the interests of the Earth Island.

In relation to the latter point, the relevant employee had professed to Whitmar that the Linked-In groups were personal and merely a hobby and so had refused to disclose the username, password and all access details to Whitmar. Therefore, part of Whitmar’s application to the court was for the defendants to deliver up the Linked-In access details to Whitmar.

The High Court’s decision

The High Court found that that Whitmar would have a very good chance of succeeding (at a full trial) in demonstrating that the defendants had been taking active steps to compete with Whitmar for some time prior to their resignation (and, therefore, whilst they were still employed by Whitmar) and that the defendants had gained a competitive advantage through breaches of the implied duties they owed to Whitmar. Therefore, the application for interim relief (including that for delivery up of the Linked-In access details) was granted.

What does this mean for business?

This decision will provide some reassurance to employers about the approach that the courts now take to cases where employees are alleged to have misused social media sites such as Linked-In, that they have used in the course of their employment for their employer’s benefit. It was relevant in this case that the defendants had used Whitmar computers for maintaining these Linked-In groups and that they were used to promote Whitmar’s business.

Clearly each case turns on its own facts and businesses whose employees use social media for work purposes do need to ensure that they have the relevant paperwork in place (in particular, a social media policy) which makes it unambiguously clear to its employees (and to any court which should later need to make a decision on such matters) that, among other things: the employees’ use of certain social media sites is deemed to be for work purposes, the database of contacts made on the site is deemed to be the property of the business and the employee will be obliged to disclose access details to their profile on the site on request from the business.

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Euan Lawrence

Employment Law
0113 227 9207
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Euan Lawrence Blacks Solicitors LLP