Who owns LinkedIn contacts

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Who owns LinkedIn contacts

Who owns LinkedIn contacts that employees create whilst employed: the employer or the employee?  Here, we gave an employer access & control over employees’ LinkedIn contacts.

LinkedIn contacts were key for our client, a recruitment company focused on the financial services industry. Our client’s consultants used LinkedIn to generate new business contacts. Departing employees could use LinkedIn contacts, created during their employment, for their own or a competitors’ benefit.

Our client wanted it’s employment contractual terms and procedures to adequately protect its business.

We reviewed our client’s existing contract and policy documentation, which included standard confidentiality provisions. These prohibited the use of confidential information belonging to the company. The terms specifically mentioned candidate and client lists. There were also restrictive covenants  that prohibited soliciting candidates and clients, including prospective candidates and clients.

LinkedIn contacts and standard confidentiality terms

The LinkedIn contacts raised problems. Standard form confidentiality and restrictive covenant clauses do not address, e.g that:

  • An employee’s LinkedIn contacts may not be confidential;
  • Other people can view an employee’s LinkedIn contacts;

In addition, what if an employee keeps his contact list on LinkedIn and nowhere else. Does the employer:

  • Own the LinkedIn contact list? and/or
  • Have a right to access the LinkedIn contact list?

Who owns LinkedIn contacts

An employee can argue that his Linkedin account includes:

  • Personal contacts that predate his employment; and
  • Friends who are not business contacts; plus
  • The LinkedIn user agreement is between an individual and LinkedIn, not
    • Between the individual’s employer and LinkedIn;

So an employee could argue he owns the LinkedIn information, and/or the employer has no right of access to his account.

LinkedIn operates in a way that makes restrictive covenants difficult to enforce.  When an employee moves to a competitor he updates his LinkedIn details. His connections learn of his status change. Arguably,  this is not a targeted request to do business that would amount to a breach of a normal non-solicitation clause.

LinkedIn contacts: employers best practices

We recommended our client instituted:

Dedicated LinkedIn account

Employees should use a dedicated Linkedin account during their employment. Employees only use this account for the company’s purposes. Thus both employer and employee agree that all contacts and connections belong to the company.

LinkedIn performance measures

Our client introduced new performance measures, that were based on clients and candidates generated on LinkedIn.

Employers’ contact database

The employer created a database, to which employees copied their LinkedIn contacts.

LinkedIn account settings

Our client defined required LinkedIn account settings. Thus an employee’s connections could only see contacts both parties held in common. This means an employee’s connections would not see any new connections.

Right of access

Employees signed agreements giving the employer a right of access or password control.  This allowed the employer to gain control of the LinkedIn account when the employee left.

Actions on departure

When employees left the company, they agreed to delete their LinkedIn business contacts & connections from the LinkedIn account.

New restrictive covenants

We added and amended the restrictive covenants to specifically refer to social media accounts. The covenants explicitly stated that soliciting clients and contacts includes:

  • Status change notifications;
  • Reconnecting with clients & contacts.

Summary

We believe these recommendations properly protect our client’s business interests, and limit the risk of costly litigation.