LinkedIn and Twitter: whose account is it?

Social media makes it very easy for employees to create a network of individuals with whom they currently work and/or may work in the future. However, the border between the personal and the professional in this context can be a very blurred one, and the question of who owns the contacts on LinkedIn — or on Twitter — is one that is that is increasingly troubling the courts.

In the UK, under the Copyright and Rights in Databases Regulations 1997, databases compiled by employees in the course of their duties are, by default, the property of the employer. The 1997 regulations prohibit ‘extraction and reutilisation’ without the consent of the owners. However, the data in social-media accounts are held on a third-party server and require little or no investment from an employer to create, except perhaps indirectly through the use of the employee’s time. It is therefore questionable whether contacts on social media would satisfy the definition of a database for the purpose of the 1997 regulations.

In a case from before the explosion of social media — PennWell Publishing (UK) Ltd v Ornstein — the High Court held that a list of contacts created and maintained by a journalist on his employer’s email system belonged to the employer, although the court stated that if he had kept his personal contacts separate from his employer’s, then he would have been entitled to use them. This was followed by Hays v Ions where the High Court found that an employer had reasonable grounds to bring a claim against a former employee who had used a database to create personal contacts in LinkedIn, although that case was somewhat exceptional as it concerned an alleged serious breach of trust…

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