This is an interesting article from the legal team at Rosenblatt Law.
It looks at recent case involving LinkedIn. If you own a business that you hope you may sell one day, or you are employed, then this makes essential reading…
Most professionals in most businesses across the English speaking modern world are likely to have a LinkedIn account. I have one, you will have one, as will your members of staff. So the question arises, if an employee leaves your employment, can you argue that you own that account, what are the company’s risks as to the content of the account, and what restrictions can you put in place to seek to protect those risks?
The Courts have not yet truly grappled with the answers which remain far from clear as a result. As things stand, we are left therefore to fall back on the laws of confidentiality, post termination restraints, the tort of passing off and the economic torts (collectively referred to in various jurisdictions as “unfair competition” laws), together with some plain common sense.
In this first article on the topic, we address ownership of the account.
So whose account is it?
Nowadays the majority of professionals will already have a personal LinkedIn account. It will have been set it up using a personal email address and may be used in a variety of ways from being a mere resume to actively sourcing business. It is relatively clear that a personal LinkedIn account belongs to the individual. However as companies have become more astute to the benefits of these social networking tools, many now establish and finance LinkedIn (as well as Twitter) accounts for their employees. Does the company own that account?
LinkedIn has clarified this issue in its user agreement which provides that the ownership of a LinkedIn account is personal to the individual in whose name it is registered, regardless of the email account used to register the account.
This was a key factor considered by the US Courts when the question of ownership came before it in the case of Linda Eagle v Edcomm Inc & Others (1) in which judgment was given on 12 March 2013. In that case the employee (the President and co-founder of Edcomm prior to her “involuntary dismissal”) established a LinkedIn account using her work email address. It was submitted during the court process that she had some 4,000 contacts on her LinkedIn account. Following her involuntary dismissal, Edcomm decided that it was the owner of the LinkedIn account on the basis that it was set up at the company’s instigation using a company email account.
As a result they took over the account by altering the password (which had been given to Dr Eagle’s assistant) thereby blocking Dr Eagle’s access to the account. Moreover they “highjacked” the account such that if a search was undertaken on Google or on LinkedIn for “Linda Eagle” during the time that Edcomm had control of the account, the user would be directed to a LinkedIn account named Linda Eagle at the URL http://www.linkedin.com/in/lindaeagle but which now bore the name, picture and credentials of her replacement at EdComm. This continued for a period of in or around two weeks. Dr Eagle contacted LinkedIn and whilst the case is silent on the point, it is to be concluded that LinkedIn intervened and per the terms of the user agreement re-established Dr Eagle as the controller and sole user of the account.
Dr Eagle brought various claims against the company and was successful in her claims for unauthorised use of her name, invasion of privacy by misappropriation of identity and misappropriation of identity. Her downfall was that she was unable to prove any loss arising from Edcomm’s actions. For its part, the company lost its counterclaims against Dr Eagle for misappropriation (essentially breach of confidence) and unfair competition.
However, the US court did find that the account did indeed belong to Dr Eagle not least because of the user agreement in place between the individual and LinkedIn. This is the case even in the event that a LinkedIn account is created using a business email address and even if the business has a separate LinkedIn account with LinkedIn.
What measures can be taken?
This issue has not arisen before our Courts but given the terms of the user agreement and LinkedIn’s clear intention that a LinkedIn account is personal to the individual, it is to be expected that our judges will take a similar approach.
However in coming to the decision in Eagle v Edcomm, the US court took into account that whilst the LinkedIn account had been set up at the behest of the company and the company had been involved to some degree as to the content of the LinkedIn account, Edcomm had not paid anything towards the maintenance of the account, and it was used for a variety of purposes including personal contacts and contacts outside of work. In particular it was accepted that Dr Eagle was very well known in her industry and had a reputation independent of Edcomm for which she used her LinkedIn account. The account was not therefore used solely for the purposes of Dr Eagle’s role at Edcomm, and there were no real policies in place internally as to the contents of the LinkedIn account.
Would the Court come to a different decision, therefore, if the company required an employee to have a role specific LinkedIn account, set up using the company’s email account, paid for by the company, vetted and monitored by the company in accordance with company policy as to content and usage, such that it is used solely for the enhancement of the business and reputation of that company through that individual?
Whilst we do not know the answer (and the LinkedIn user agreement states that there should be one account per user only) if you want to have any kind of prospect of being able to claim ownership over a LinkedIn account and/or the contacts contained in it (notwithstanding the user agreement), then a company would be well-advised to require an employee to open a “company” account using his or her company email address.
Each “company” LinkedIn account should be treated as if it were company property with an express agreement in place with the employee as to the ownership of the account, and as to the ownership of the confidential data (client list) within the account. Clear internal policies should be put in place as to the usage of the “company” account with the account being monitored, amended, and regulated by the company in line with those policies, and the cost of the account should be met by the company.
What is relatively clear however is that any “personal” LinkedIn account set up by an employee alongside any such “company” LinkedIn account will belong to the employee.
This article should not be taken as definitive legal advice on any of the subjects covered. If you require legal advice on any of the subjects covered please contact Laura Clatworthy, Partner Dispute Resolution on 020 7955 1448 or firstname.lastname@example.org. www.rosenblatt-law.co.uk
Chantal Cooke is a regular contributor to the3rdimagazine.