Why can’t we be friends? Why can’t we be friends? Why can’t be friends? Why can’t we be friends?

27 February 2014

posted in Business | Social Media | Employment



Social media is the new business lunch, promotional pamphlet, business card, word of mouth, cold-call – the new ‘normal’. Sites such as Twitter, Facebook and LinkedIn have transformed the way people socialise, network and stay in touch and are now a necessary tool for global commerce, business marketing and development.

As such, Employees are increasingly being encouraged to utilise the power of social media for the purposes of not only promoting and marketing their employers business per se but also to promote themselves as representatives of the business. However, without clear parameters and guidelines governing the use of such sites and particularly any connections made through such sites, they can prove to be a double edged sword for business owners.

For example, who owns the Twitter followers, Facebook friends and LinkedIn connections developed by an employee when carrying out their duties for business owners? Are such connections and networks critical to the business and if so, how are such connections to be managed when an employee parts ways?

In light of the personal nature of the contents, connections and interactions created via social media accounts, the ownership of employees social media accounts used during the course of their employment is complex.

While social media is evolving exponentially, in New Zealand the legal position in relation to the ownership of connections and relationships made by employees during their employment is less developed.

Cases overseas are beginning to emerge that deal with this issue. In one United Kingdom case (Hays Specialist Recruitment (Holdings) Limited v Ions [2008] EWHC 745), a previous employee was ordered to disclose his LinkedIn business contacts acquired during his employment with his previous employer together with all emails sent to, or received by, his LinkedIn account from the employers computer network during his employment. In this case, the employee (Mr Ions) worked as a recruiter with his employer (Hays) before leaving and setting up a competing business. Hays suspected Mr Ions of using confidential information pertaining to clients and contacts by copying them from the Hays’ client database to his personal LinkedIn account.

Mr Ions argued that Hays had consented to his use of LinkedIn and had encouraged him to use it to connect with clients. Mr Ions also argued that once an invitation on LinkedIn had been accepted by a new contact, this information ceased to be confidential because it was then accessible by others on LinkedIn.

The Court rejected Mr Ions arguments noting that despite Hays giving Mr Ions authority to use client email addresses to invite clients to connect with him, it was unlikely that this authority extended to the use of this information beyond his employment with Hays.

In another United Kingdom case (Whitmar Publications v Earth Island [2013] EWHC 1881), an employer sought an injunction against its ex-employees after it discovered that they had set up a rival publishing company. The employees had used the employer’s LinkedIn groups to promote their new business prior to the end of their employment and refused to provide the employer with the log-in details for any of its LinkedIn groups after their employment had ended. The employer’s LinkedIn groups were managed by one of the ex- employees who argued that they were personal and "just a hobby” for her. The High Court granted an injunction against the ex-employees and ordered that they provide the employer with the access details to all of its LinkedIn groups and not do anything to prevent the employer from accessing and managing the groups.

Without a clear determination on this issue in New Zealand, employers will be better placed by having a clear social media policy detailing their position with respect to these matters and/or or agreeing with the employee at the commencement of the employment relationship the conditions governing not only the general use of social media but also and management and ownership of connections created and maintained via social media during an employee’s employment. Some suggested ways of managing this issue include:

  • Agreeing that the employee my continue to keep the connections but requiring the employee to provide a list of the connections to the employer prior to their departure so that the employer can then make necessary contact with any such connections regarding the employee’s departure.
  • Agreeing that where an employee’s username or handle refers to the company, the employee changes that handle to a new handle agreed to by the employer.
  • Requesting that the employee delete from their account all connections made during their employment in relations to the business.
  • Agreeing that any connections generated in the course of the employee’s employment using the employer’s resources will belong to the employer.
  • Agreeing that the employer is entitled to control of the account for a particular period following the employee’s departure.

#death by a thousand tweets

A similar issue relates to employees who are required to manage and/or have been provided access to the company’s social media account. Employees do, of course, leave positions, and while the majority of employees would not consider sabotaging their previous employer’s account to cause havoc, there remains a risk that one disgruntled former employee may do so. To prevent the reputational damage that could be caused in such circumstances, employers should turn their mind to whether there are adequate measures in place to prevent employees engaging in this type of destructive conduct such as ensuring passwords to social media accounts are not held by one employee and considering how posts made by the employee are to be monitored.

27 February 2014

posted in BusinessSocial MediaEmployment



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