The use of online social networking in the workplace has increased dramatically in recent years, in particular through the use of LinkedIn accounts by employees to maintain lists of contacts made during their working lives. This has given rise to debate as to whether employers or employees own LinkedIn contact lists created in the course of employment and whether an employer can insist on the return of such contact lists upon an employee leaving a company.
 
Due to the terms and conditions of LinkedIn, ownership of a user account itself (provided it is in an employee’s own name) remains at all times with the employee and an employer cannot force the employee to transfer their account or disclose their username and password to them.

The key question is therefore whether a LinkedIn contact list created in the course of employment constitutes confidential information owned by the employer. Whilst individual telephone numbers and email addresses alone cannot constitute confidential information, an employer is likely to have invested in the creation of contact lists relevant to their area of business, which if disclosed to a competitor would be of significant use to them. In the case of Penwell Publishing (UK) Ltd –v- Ornstein & Others ([2007] EWHC 1570) it was decided that whilst information such as head office addresses and contact numbers were in the public domain and could not be classed as confidential information, the direct dial numbers or email addresses of individual clients or contacts should be treated as confidential information created in the course of employment and belong to the employer. However, in the Penwell case the contact details in dispute were stored on the employer’s Outlook system and backed up on their servers, rather than on the LinkedIn website and its external servers. As such there was little doubt that the contact information belonged to the employer as they were created in the course of employment and retained by them on their IT systems. It is therefore unknown whether this case applies to contact lists stored on LinkedIn. As mentioned above, the account is owned by the employee and the contact information would be stored on external servers.

Only one case has dealt with LinkedIn accounts directly. In Hays Specialist Recruitment (Holdings) Ltd & Another –v- Ions & Another ([2008] All ER 216) the Judge stated that whilst an employer may authorise or even encourage employees to gather contact details on their LinkedIn accounts, that contact information was gathered in the course of their employment and constituted confidential information which remained the property of the employer. Whilst a definitive ruling was not made in respect of the ownership of contact lists stored on LinkedIn, this suggests that any contact lists created in the course of employment belong to employers, and in the event an employee leaves his employer, the contact lists must be returned.

Employees may argue that they should be able to retain their contact lists as they form part of the personal knowledge and value they accumulate as their careers progress. Whilst no definitive ruling has been made in this respect, the attitude of the courts in respect of information gathered during the course of their employment suggests that regardless of the LinkedIn account being owned by an employee, any contact details stored on the account in the course of employment will be the property of the employer and must be deleted or returned to the employer if the employee leaves the company.

In light of this, employers may wish to update their terms of employment and employee handbook to include reference to contact lists made in the course of employment and, in particular, those which are stored on LinkedIn to ensure such lists are returned to the employer once the employee leaves.  Employees should seek to protect themselves and clarify their employer’s attitude towards such contact lists before accepting an offer of employment.

For further information, please contact Paul Gilks at