UK: Shutting The Stable Door − Protecting Business Assets In An Age Of Social Media

It used to be so simple. Business contacts and useful client information were kept on an employer's IT system, belonged to the employer, and could not be copied or taken away when the employee left. When information was taken, we would all trundle off to court to seek forthwith delivery up orders and springboard injunctions.

But what if contact information is not stored on the employer's IT systems? Many of us are now actively encouraged, even trained, to make and keep contacts on networks like LinkedIn and other social media using accounts personal to the user. It may seem less important to protect client or contact information that is readily publicly available, but these are clients and contacts of the business.

Of course, employers should have, and should seek to enforce, up-to-date social media policies which make it clear that any contacts added during the course of employment should be deleted on termination of employment and not reinstated for a period after employment has ended. However, it is not entirely clear whether such precautions will be enforceable post-termination. Nor does this deal with the practical issue that, even if an employee deletes his or her contacts, there is nothing to stop those contacts easily from reconnecting. This is the whole point of many social/business networks.

So employers may also have to rely more heavily on post-termination restrictive covenants, such as non-solicitation and non-dealing covenants, which may protect client connections even where information is publicly available (see for example, East England Schools v. Palmer and Sugarman Group Limited [2013] EWHC 4138 (QB)). Whilst it is true that general announcements regarding an employee's new position may not themselves amount to solicitation, departed employees will need to be careful that there is no solicitation once approached by former clients. An enforceable non-dealing provision will also be vital in limiting the damage, a restriction often omitted from contracts.

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