Your consultant's LinkedIn profile - your property or theirs?

If your consultant leaves your business, to go to a competitor, is their LinkedIn profile and contact list your property as confidential information and therefore protectable, or is it their own personal network , and property? 

Not surprisingly this is becoming an important question as the use of LinkedIn, Facebook and Twitter ever increases, and there is inevitably a conflict between encouraging a consultant to use these incredibly useful tools and wanting to protect the agency’s position.

In general terms, most profile information on the LinkedIn network it is in the public domain and no longer, by its very nature, “confidential”. However the use of the email and message service is clearly a private matter and may well be considered ‘confidential information’ gained during employment. The use of confidential information can be restricted during and potential post employment by well drafted restrictive covenants in contracts of employment.

This issue has been before the court in 2008 in a case involving national recruiter Hayes. The claim was one for pre action disclosure to find evidence that the consultant had courted clients and solicited business via the LinkedIn network whilst employed by Hayes, and had then left and set up his own rival recruitment business.

In a pre-action disclosure application, a party can apply to the Court for an order that their potential opponent in a claim should disclose relevant documents, whether they are helpful or contrary to the case being advanced. In this case the recruitment consultant was alleged to have been actively courting clients via the LinkedIn message network during the course of his employment, and it was this behaviour that Hayes complained of.

In general terms once information is in the public domain it is no longer “confidential”. Although it would be a lot of work for a Consultant who had left an agency to replicate a list of contacts or a LinkedIn network of this nature, it would not be particularly difficult (may be time consuming!) and thus unless their LinkedIn e-mail held more specific and thus confidential information about people within the LinkedIn network, I think a Consultancy would have significant difficulty in showing that simply using it or indeed transferring it to another role would be a breach of an employment contract or subsequent restrictive covenants – subject of course to those being enforceable in the first place. Case law is evolving these issues all the time and the position will change as cases come through the courts.

The key for your Consultancy is to ensure that your contracts of employment are well drafted to include social network issues where possible and to define property and other rights in this information carefully, so that your restrictions can survive post termination and protect you. As consultants you should be able to port your list of contacts to another role but be careful about what is in your email account – that is a potential risk. Remember that LinkedIn and other sites can be joined to proceedings to obtain third party disclosure and that evidence can be used in court actions – you may have seen the juror this week who was found in contempt of court for contacting a defendant through Facebook – these evidential trails can and will be followed by Consultancies who rightly feel they have a legitimate interest to protect. You also need to be careful to update your profile if you move businesses so that you are not ‘holding yourself out’ as still being a part of your previous organisation and acquiring work on the back of their reputation.

For more information on this subject, please contact dispute resolution specialist Heather Stanford or join the debate on in our eForum on Linkedin