Can I require employees to delete contacts from social media when they leave employment?

Most businesses have a presence on social media such as Facebook, Instagram, Twitter, and LinkedIn to connect with professional contacts, employees and clients or customers. Over the course of their employment, some of your employees may add professional contacts they made to their own personal social media accounts. They may then be able to take this data with them when they leave your employment. This article discusses who “owns” that data and whether you can require a former employee to delete such contacts from their personal social media.

Why is social media an issue for employers?

Some employers have post-termination restrictions contained in their terms of employment to prevent their employees from soliciting clients or going to work for a direct competitor but post-termination restrictions can be tricky to apply to social media. Some of the challenges that employers have with social media involve:

• Data and valuable contact information being stored on employees’ personal accounts during their employment as this will be available to them after termination.
• Business-related information stored on employees’ personal accounts blurring the distinction between personal property and company property if that information is not stored on the employer’s IT system.
• The nature of social media and that although users are able to control confidentiality and privacy settings, there is still a portion of that information that is freely available and in the public domain.
• The speed and efficacy of online communication and that employees can easily announce their departure or the identity of a new employer simply by updating their profiles.

These issues listed above have been considered by the courts in a small number of cases but social media still remains a grey area and continues to evolve as the law has not caught up with the significant advances in technology over the few decades.

Who holds the ownership?

A lot of the disputes over social media stem from the question of who holds ownership over profiles and/or contacts on that profile. One case that may be instructive on this question is Pennwell Publishing (UK) Ltd v Ornstien [2007]. Though this case did not involved social media, it is still relevant as the court was asked to consider who owned the employees “contact book” which he had built up during his employment. The court decided that the contact list, which was stored on the employer’s IT system, belonged to the employer. It reached this conclusion even though the list included personal and professional contacts the employee had before his employment with the company. The judgement also said that had the contact book been stored on the employee’s personal system, the list would have belonged to him. This case shows the significance of where data is stored when determining ownership. Employees may be able to increase the likelihood of retaining ownership of contacts if the stat is stored on their personal systems.

The contacts listed on an employee’s social media can constitute an identifiable list of clients and customers who can easily be contacted, at little or no cost to the employee. Social media accounts are usually owned and operated by individuals, even if they are operated on the employer’s behalf. This is the position LinkedIn takes regarding its profiles, which can be found in the terms and conditions under Clause 3 of LinkedIn’s User Agreement. This can make it extremely simple for employees to claim ownership over account and contacts that have been operated or gained in the course of their employment and these claims of ownership can be successful unless there is an express agreement between the parties covering this.

How can ownership matters be managed?

An example of an express agreement covering ownership of social media contacts can be seen in Whitmar Publications LTD v Gamage and other [2013]. In this case, a former employee attempted to rely on LinkedIn’s terms of use to retain ownership of LinkedIn groups she had managed during her employment and which were personal to her. However, it was found that one of her job responsibilities was to deal with accounts operated for the benefit of Whitmar Publications LTD, using their IT systems to promote the business. This meant that although LinkedIn terms state the ownership is personal to the account holder, the job duty meant that management was effectively handed over to Whitmar.

As the internet and social media has taken over, employers have become more aware and have taken steps to address any social media accounts that they have or use and where the line is drawn on ownership. Some employers have specific policies regarding social media and the approach employees should take to business contacts on termination of employment to ensure confidentiality and protection of their clients from former employees poaching them for competitors.

What can employers do to address these matters?

When looking into the policies that employers can put in place to protect their ownership of their accounts or contacts, employers tend to have a choice of wording depending on how they want to manage the risk of ownership disputes. For example, wording may be laid out like this: “You are not permitted to add business contacts made during the course of your employment to personal social networking accounts. OR The contact details of business contacts made during the course of your employment are our confidential information. On termination of employment you must provide us with a copy of all such information, delete all such information from your personal social networking accounts and destroy any further copies of such information that you may have.”

The restrictive covenants, although difficult to apply, are still important to be implemented if employers are concerned with employees poaching clients for competing businesses. For example, this wording taken from a restrictive covenants clause that can be found in contracts of employment states that following: for [PERIOD] months after Termination, solicit or endeavour to entice away from [us OR any Group Company] the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business” the Restricted Customer in this wording being the client or customer, and this clause can be applied to restrictions on social media.

In summary, yes you can require employees to delete contacts from social media but only if you have the necessary restrictions stated in the employee’s contract of employment (restrictive covenants) and handbook (social media policy of some sort). Otherwise this distinction of ownership could be left to the interpretation of the courts depending on how severe the dispute becomes which may not always be in the employer’s favour.