In today's swiftly advancing digital environment, employers face new challenges in enforcing non-compete and non-solicitation covenants. Recently, it has been suggested that employees are capitalising on a unique feature on WhatsApp that allows messages to be automatically deleted or disappear after being sent, thoroughly eliminating any evidence and traces of unauthorised communications. This technological gap and loophole raises significant legal and practical concerns about the enforceability of these covenants and the strategies that businesses can implement to protect their rights and interests.
The legal landscape of covenants
Non-compete and non-solicitation covenants are contractual provisions that restrict an employee's ability to work for competitors or solicit clients and colleagues for a specific and justified period after leaving an organisation. These covenants are designed to safeguard legitimate corporate concerns, such as trade secrets, customer relationships and confidential information. However, the enforceability of these covenants considerably differs by jurisdiction, with some courts applying strict scrutiny to ensure they are reasonable in scope and duration.
WhatsApp's disappearing messages feature
WhatsApp, one of the world's most popular messaging applications, introduced a feature that allows users to send messages that automatically disappear after a set period. This relatively new feature has raised serious concerns over the enforcement of covenants applicable to former employees.
While useful for personal privacy, the feature poses a significant challenge for employers attempting to monitor compliance with covenants. Employees can potentially use this feature to communicate with competitors or solicit clients and colleagues without leaving any digital footprint. Where privacy plays a crucial role, businesses cannot compromise on their transparency and clarity, and therefore the advent of the easy-to-use self-destructing function on WhatsApp raises serious concerns.
The legal implications
The use of disappearing messages complicates the enforcement of covenants in several ways:
- Evidence: traditional methods of gathering evidence, such as reviewing email logs and phone records, lose effectiveness when communications disappear without a trace or footprint. This lack of evidence makes it challenging to prove breaches of covenants in court.
- Burden of proof: in legal disputes dealing with covenant breaches, the burden of proof lies with the employer. The absence of tangible evidence because of disappearing messages can significantly weaken an employer's case, making it difficult to demonstrate that a former employee engaged in prohibited conduct.
- Legal adaptation: courts and legal bodies may need to adapt to address the challenges posed by disappearing messages. This could involve the development of new laws or the application of existing ones.
Strategies for employers
Given these challenges, employers could adopt the proactive strategies outlined below to safeguard their interests:
- Policy updates: update employment contracts and policies to explicitly state and address the use of disappearing messaging features. Strictly forbid the use of such functions for business-related communications, especially those that could violate such covenants.
- Technology solutions: adopt technology solutions that can track and record communications on company-issued devices. These solutions can help detect suspicious activities and ensure compliance with company policies.
- Employee training: educate employees about the importance of adhering to covenants and the potential legal consequences of using disappearing messages for prohibited communications. Awareness programmes can help deter misuse and reinforce the company's commitment to ethical conduct.
- Legal implications: consider seeking injunctive relief in cases where there is a reasonable suspicion of covenant breaches facilitated by disappearing messages. There have been numerous cases where the most wanted relief is an injunction or a springboard injunction – as seen in Forse and Others v Secarma Ltd and Others, where a former employee was prevented from misusing their former employer's confidential information. An injunction can prevent further breaches and protect the company's interests while the matter is investigated.
- Collaborate with legal counsel: work closely with legal counsel to develop robust strategies for monitoring and enforcing covenants. Legal experts can provide guidance on the latest technological and legal developments, ensuring that the company's approach remains effective and compliant with the law.
The introduction of disappearing messaging presents a unique challenge for employers trying to enforce non-compete and non-solicitation covenants. By understanding the legal applicability and adopting strong strategies and amending their approach, businesses and employers can better shield their interests in an increasingly digital and technological world. As technology continues to develop and progress, so must the techniques and approach to maintaining the integrity and enforcement of these essential employment agreements.
Originally Published by People Management Magazine
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.
