Australia: LinkedIn connections – who do they belong to?

Last Updated: 25 September 2019
Article by Grace Gunn

There are a wide range of factors that both employers and employees must take into consideration when ending an employment relationship. Whilst many points on the "end-of-employment checklist" are simple to action and take place without issue, one increasingly common point of contention is the question of what happens to the LinkedIn connections formed by an employee in the course of their employment.

Does an employer have any rights over the connections made during the employment period, or are these connections considered the property of the employee? This question is especially vexed for those industries where individual relationships formed between employees and clients are fundamental to the bottom line of the business (e.g. sales representatives).

Clause 2.2 of LinkedIn's User Agreement states that "[a]s between you and others (including your employer), your account belongs to you". This provision suggests that LinkedIn as a platform is aware that there may be circumstances where the legal ownership of its user accounts may be influenced by external agreements to which it is not a party. It is in the context of these agreements that it has been held that connections made throughout the course of the employment relationship can constitute confidential information belonging to the employer.

Case law

Australian courts are yet to pass judgement on whether social media connections formed during a period of employment constitute confidential information belonging to the employer.

Whilst we are yet to see a clear and authoritative decision surrounding ownership of LinkedIn accounts and their associated connections within the context of employment law, notable trends across both America and the UK have seen businesses starting to claim ownership over their employee's LinkedIn connections.

In the case of Hays Specialist Recruitment (Holdings) Ltd. V. Ions [2008] EWHC 745 (Ch), the High Court of Justice in England held that by uploading information to LinkedIn, a former employee had transferred the employer's information to a site where the information would be accessible to him after he ceased employment. The employer argued that this constituted a potential breach, even if the confidentiality of the information was later lost.

In this case, Mr Ions, a mid-level recruitment consultant with Hays Specialist Recruitment, left his employment with Hays to set up his own recruitment consultancy. Prior to his departure from Hays, Mr Ions sent LinkedIn connection requests to at least two Hays candidates. One of these two candidates responded by accepting the connection request, and subsequently asking Mr Ions to secure employment for him.

In the case of Cellular Accessories For Less Inc v. Trinitas LLC et al, No. 2:2012cv06736 - Document 86 (C.D. Cal. 2014), a US District Court judge denied a former employee's motion for summary dismissal of a trade secret misappropriation claim filed by Cellular Accessories for Less, Inc ('Cellular').

In this case, David Oakes ('Mr Oakes' or 'the Defendant'), who had been employed as a sales account manager for Cellular, was terminated by the company in 2010. At this time, Mr Oakes decided to start his own company, Trinitas LLC. As Mr Oakes had kept his LinkedIn connections after departing from Cellular, one of the key issues in this trade secret claim was whether (and to what extent) LinkedIn contacts are considered trade secrets.

The District Court judge stated that a list of business contacts can be protected as a trade secret, however the list must have been 'difficult to create' and cannot be easily obtained through public sources. This issue is complicated by the fact that LinkedIn suggests contacts to its users automatically, and account holders are able to view other users' LinkedIn contacts (depending on their security settings).

Both parties moved for summary judgement on certain points, including the issue of LinkedIn contacts. Ultimately, the judge denied summary judgement regarding LinkedIn contacts and ruled that there were issues of material fact and question that should be decided by a jury.

In the case of Cactus Imaging Pty Limited v Glenn Peters [2006] NSWSC 717, it was held that the personal connections between employees and their customers may be a legitimate and protectable business interest of the employer.

Similarly, the case of Naiman Clarke Pty Limited atf Naiman Clarke Trust v Marianna Tuccia [2012] NSWSC 314 saw a recruitment company pursue a former employee for breaching their confidentiality obligations. In this case, the employer ('Naiman Clarke') accused the ex-employee ('Ms Tuccia') of using the company's client database to aid her in increasing her LinkedIn contacts prior to resigning. It was argued that the employee had subsequently benefitted from being able to access these connections in her future roles.

Naiman Clark sought damages and enforcement of restraint provisions, including an order that Ms Tuccia delete certain connections from her LinkedIn profile. These proceedings were transferred from the Local Court of New South Wales to the Equity Division of the Supreme Court of New South Wales, however we assume the matter settled outside of court.

Protecting confidential information

While we wait for a clear decision in relation to the ownership of LinkedIn connections, Holman Webb advises employers to consider implementing a (or where relevant, updating their) social media policy. Such social media policies should include statements dictating that:

  1. All new LinkedIn contact details are to be uploaded to the employer's client database;
  2. Contacts made during the course of employment constitute confidential information, with this information being property of the employer;
  3. The employee must delete all LinkedIn connections made as a result of their duties on their final departure from the employer organisation; and that
  4. LinkedIn contacts cannot be used for the purpose of competing with the employer.

Such provisions may be reinforced within employee job descriptions - for example, a job description might include a statement that the employee is to establish LinkedIn connections for the benefit of the employer.

In addition to implementing an effective social media policy, Holman Webb encourages employers to:

  1. Actively manage employee access to confidential information (e.g. client lists and customer pricing);
  2. Ensure that confidential information is only made available to those employees who genuinely require it;
  3. Monitor all instances of confidential information being downloaded and/or copied;
  4. Act quickly when notified of a potential breach of post-employment obligations by a former employee. It is crucial for employers to keep in mind that any delay in acting on such a breach will be a factor considered by the court.
  5. Be prepared to engage forensic IT professionals in order to support claims of a breach of confidential information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions