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    Time for a Social Media Policy?

    Protecting your Confidential Information on Online Networks

    Social media networks, such as LinkedIn and Facebook, provide useful networking opportunities for businesses. However, without adequate protection, your valuable information, such as customer lists, may be misused by former employees at a significant cost to your business.

    Traditional legal safeguards for your confidential information are unlikely to extend to the social media accounts of your former employees and the use of those accounts in competition with your business.

    Employment contracts and company policies should be drafted so as to establish clear guidelines for employees utilising social media, both during and post-employment. Your policies should disseminate your expectations to employees, and help you develop a culture that recognises and protects your company brand and confidential information.

    The Current Issues

    The law has not kept pace with the rapid growth in the use of social media in the workplace, leaving questions as yet unanswered:

    • Does a business own an employee’s LinkedIn contacts obtained during the course of employment?

    • Can former employees use social media contact lists post-employment?

    In a recent UK decision, the Court ordered the former employee to hand over his LinkedIn contacts obtained during his employment. The Court reasoned that, based on the terms of his employment contract, it was unlikely that the employer gave the employee authority to upload contacts to his LinkedIn profile for use outside the scope of his duties with the employer.

    Whilst the Court didn’t go so far as to clarify the question of ownership of contact lists on online networks, the case highlights the potential threat posed to businesses by former employees retaining customer lists from online networks for use in competition post-employment.

    How can confidential information on online networks be protected?

    Your existing company policies and employment contracts should be reviewed and amended to cover the use of social media sites by your employees, and the post-employment use of contact lists obtained throughout the course of employment.

    It is settled law in Australia that an employer’s customer database is an interest capable of protection through restraints of trade against former employees.

    Australian Courts will take into account express contractual restraints of trade that are reasonably necessary to protect a legitimate business interest.

    A Social Media Policy can provide invaluable guidelines for employees’ use of social media during the course, or for the purposes, of their employment, and may cover issues such as ownership of contacts, disclosure of contacts and deletion of accounts upon termination of employment.

    To discuss your employment contracts and your Social Media Policy, please contact us:

    Jenny-Ellen Kennedy

    Alice Herbon

    Wednesday, September 18, 2013

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