Social media contacts
Our social media contacts have become a routine part of the way we do business. Most businesses have a social media presence, and market or advertise their trade or services through social media. Additionally, employees use social media to communicate with each other, and with clients or customers.
In August 2013 in the case of Whitmar Publications Ltd v Gamage an employer obtained a court injunction to prevent ex-employees from using the employer’s social media contacts.
The defendant, Gamage and others set up a competitive business, and tried to take the clients and employees of the claimant, Whitmar. The employees refused to disclose Whitmar’s user name and password for its Linkedin pages. They also took Whitmar’s database of clients. Whitmar sought injunctions to stop the misuse of confidential information to gain an unfair commercial advantage.
The High Court granted the interim injunctions on the basis that Whitmar would have a good chance of success at trial. In this case, Whitmar did not have contracts governing social media, and had to rely on implied duty of good faith and fidelity.
It is not only your LinkedIn contacts that you need to protect. Your Twitter followers, Facebook pages, and your content and contacts on all the social media platforms should also be protected.
The number of Twitter followers a company has gives an impression of how popular that company is, and therefore it is an indication of the brand value of that company, so are the number of fans following a Facebook fan page. If a consultant or employee spends time building Twitter followers, and then leaves the project or company they may claim the company’s followers.
The problem with relying on an employee’s implied duty of good faith is that it is subjective. It is what the employee considers is in the interests of the company. Likewise with the implied duty of fidelity it is as Lord Greene MR says in Hivac v. Park Royal  Ch 174 practically difficult to find out exactly how far the “vague duty of fidelity extends”. In other words you want to have a written policy that will stand up in court as best practice. In drafting a social media policy you also need to consider the employee’s right to privacy and to freedom of expression.
To book a face to face consultation for legal advice about social media contracts and policies, contact a specialist e-commerce lawyer (charge rates may apply and may vary).