3 things you should know about LinkedIn
As many of you will know, LinkedIn is a social networking platform designed for the business community. LinkedIn can be an important marketing and business development channel. Many employers encourage the use of LinkedIn by their workforce, having recognised the benefits it brings when trying to promote a business. The website allows registered members (who are either individuals or organisations) to establish a network of contacts they know or would like to build a professional relationship with, called “connections”. Unlike other free social networking sites, LinkedIn requires connections to have a pre-existing relationship or to be introduced by another member.
According to Microsoft, who acquired LinkedIn in 2016, engagement on LinkedIn is at a record high levels, with more than 610 million professionals now interacting on the platform, with around 27 million in the UK alone.
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.
A LinkedIn account is generally considered to be personal to you and does not belong to your employer. The LinkedIn ‘User Agreement’ states:
You agree that by clicking “Join Now”, “Join LinkedIn”, “Sign Up” or similar, registering, accessing or using our services (described below), you are agreeing to enter into a legally binding contract with LinkedIn (even if you are using our Services on behalf of a company). If you do not agree to this contract (“Contract” or “User Agreement”), do not click “Join Now” (or similar) and do not access or otherwise use any of our Services. If you wish to terminate this contract, at any time you can do so by closing your account and no longer accessing or using our Services.
This Contract applies to LinkedIn.com, LinkedIn-branded apps, Slideshare, LinkedIn Learning and other LinkedIn-related sites, apps, communications and other services that state that they are offered under this Contract (“Services”), including the offsite collection of data for those Services, such as our ads and the “Apply with LinkedIn” and “Share with LinkedIn” plugins. Registered users of our Services are “Members” and unregistered users are “Visitors”. This Contract applies to both Members and Visitors.
You are entering into this Contract with LinkedIn (also referred to as “we” and “us”).
2.2 Your Account
You will keep your password a secret.
You will not share an account with anyone else and will follow our rules and the law.
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 (e.g. 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.’
Who owns the 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. I disagree as this would in my view be in breach of the User Agreement as an account cannot be shared. However, 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).
Who owns the connections?
The position of LinkedIn connections is not so straight-forward. Arguably, if the connections were made during your employment and created for the benefit of your employer, and accessed through your employer’s IT system 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 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.
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 your employment are regarded as 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 an 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.
For advice on LinkedIn accounts, please contact Marc Jones at IBB Solicitors at firstname.lastname@example.org
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