August 2nd, 2013

LinkedIn has long been considered “Facebook for the workplace” and while it is common knowledge that your Facebook page is not really private, your LinkedIn page may not really be yours. Recent court decisions have started to cast doubt about whether you own your LinkedIn account and contacts or whether your employer may have a better claim to it than the person whose name and profile picture appear at the top of the page.

LinkedIn was founded in 2003, but courts and legislatures alike have been slow to develop rules for the use of LinkedIn or other social media platforms to manage proprietary contact and client data in the professional setting. It is a common complaint by employers that their employees are stealing critical network contacts and consequently business through LinkedIn. Some of these employers have not been shy about litigating to settle the issue.

In 2008, the United Kingdom was the first to address the issue of LinkedIn contact ownership. In Hays v. Ions, the court found that an employer could require the disclosure of all of a former employee’s LinkedIn contacts from his private LinkedIn account. Because there was reason to believe Ions had used LinkedIn as a means of transcribing the company’s internal database of clients so as to be able to access it when he started his own competing firm, the court ordered the disclosure of all of Ions’ LinkedIn contacts. The obvious implication being that it was possible for the contacts to actually be proprietary information belonging to Hays, not Ions who owned the account.

In the Eastern District of New York, Sasqua Group v. Courtney addressed the same issue in 2010 but came to a very different conclusion. Here, a former employee had begun a rival firm using many of the contacts she had developed while at Sasqua. The court held that Sasqua’s client database list was not a trade secret and therefore did not “belong” to Sasqua. The rulings are facially contradictory, but the key factors relied on by the judges shine some light on how an employee or employer can protect herself. In Hays there is clear evidence of wrongdoing by Ions, e.g. collecting contact names and transferring them to LinkedIn, contacting clients to solicit business for the new firm while working at Hays, etc., such that it was easy to trace the genesis of Ions’ new clients to Hays’ database. In Sasqua the judge seemed particularly convinced by a demonstration from Courtney where she replicated part of the client list using a combination of Google, LinkedIn, and Bloomberg searches. This indicated both that there was likely no direct theft of the contacts, and that such contacts did not constitute proprietary information.

Finally, and most recently, the Eastern District of Pennsylvania ruled this Spring on a similar issue involving LinkedIn. Eagle v. Morgan was a case where an employee was terminated, and, because the employer had access to the password of the LinkedIn account, the employer changed the password and locked-out Eagle, and then proceeded to change the picture and name on the account to the new CEO while leaving some of Eagle’s honors and awards intact. In that case the contacts themselves were not held to be trade secrets because an extensive list of the company’s clients was available on their website.

More interestingly, the case raised the question of who actually owned the account. The account had been made using Eagle’s company email address and had been used specifically, although not exclusively, for company business. Eagle had even gone so far as to give the password to employees who in turn helped her manage the account. Nonetheless, Eagle was able to sustain claims that her employer used her name without authorization, invaded her privacy, and misappropriated her identity.
The court emphasized that there was no social media policy in place that established who owned the account, strongly implying that such a policy would have made a crucial difference. If an Employer considers a LinkedIn account as an extension of the company’s contacts and property, it is imperative that they establish a policy that outlines their access to the Employee’s LinkedIn account, contacts, and that such an account be relinquished to the Employer upon separation of employment.

Correspondingly, Employees should be acutely aware of any such policy and cautious about how they use their LinkedIn account, because a misstep could cost them their LinkedIn account and the critical business contacts associated with it.

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