List Rhapsody? Or is it a case of "Resting on one's Laura ...?"

In the days before computers, social networking
via Twitter and LinkedIn was a real chore ...

It isn't every day that the columns of this weblog are populated with words from an employment lawyer, but today is one of those rare days. One such example of that species is Ben Collingwood, an employment lawyer with solicitors Barlow Robbins, who must have been inspired by productive hours at work spent social networking [Merpel says, I call it 'social not-working'] to send us these thoughts:

"Social Media at Work: Who's in Control?

The explosion of social media usage in recent years has begun to bring with it various legal challenges, particularly in the employment relationship.  It would be reasonable to expect these challenges to be increasingly common where employers encourage use of sites such as LinkedIn and Twitter for business networking purposes, since use of the social media has blurred the boundaries between an employee’s work and personal life. The recent  news that Laura Kuenssberg, the BBC’s Chief Political correspondent, will change from @BBCLauraK to @ITVLauraK has brought these issues to the fore.

Many employers embrace the use of online social networking to promote their business, seeking to benefit from the online activities of employees whose networking generates a positive image, increased business opportunities and employment appeal.  However, risks associated with employees’ online activities include vicarious liability for discrimination or harassment, loss of employment activity during working hours, damage to reputation and the publication of confidential information. 

 The publication of contact or client lists, and the ownership of those lists, is ripe for heated discussion in the Kuenssberg case since the entire list of an employee’s business contacts including clients, customers and suppliers, may be found on their LinkedIn or Twitter account.  Does that client list lose its confidential quality—assuming it has one—as a result of such publication?  Who owns these lists and can an employer insist on accessing them?  After the employment has ended, does an ex-employee breach post-employment restrictive covenants by accessing these  lists and contacting those whose details appear in them? 

 The sudden surge in social networking means  that there is little case law upon which to base detailed analysis of Kuenssberg’s Twitter contact list. 

 In Hays Specialist Recruitment (Holdings) Limited and another v Ions and another [2008] EWHC 745 (Ch), the Chancery Division, England and Wales, concluded that a company would have reasonable grounds for bringing a claim against an employee who transfers confidential client information from the company database to his LinkedIn account during his employment. 

 In the European Union the Database Directive defines a database as a collection of independent works, data or other materials which are arranged in a systematic way and are individually accessible by electronic or other means.  An employer is regarded as the maker of the database made by an employee in the course of employment and is therefore considered the owner of such a database.  In PennWell Publishing (UK) Limited v Ornstein [2007] EWHC 1570 the Queen’s Bench Division, England and Wales, concluded that an address list of clients which is contained in Microsoft Outlook or a similar program on the employer’s systems which is backed up and maintained by the employer belongs to the employer and may not be copied or moved in its entirety by employees for use outside or after employment.  But where an employee keeps a separate private contact address book and selectively adds journalistic contacts (as happened in that case) for personal career purposes, the employee would be entitled as a journalist to develop, maintain and even own the resulting list. 

 If this is still good law, the ownership of Ms Kuenssberg’s Twitter contact list may depend largely upon the manner in which she has compiled it.  If there is a dispute, reference will undoubtedly be made to PennWell as it also concerns  journalistic contacts. Also, if she can show that she has compiled this following outside her employment, she may succeed in claiming ownership.  It may even be shown that Ms Kuenssberg’s existing Twitter following was a deciding factor in the BBC’s initial decision to employ her. 

No doubt the BBC will attempt to muddy those waters and argue that Ms Kuenssberg’s Twitter ID itself, @BBCLauraK, brings those activities within the performance of her duties for the BBC, and that the contact list, or at least the parts which have accrued during her term of employment, belong to the BBC".

Says the IPKat, there are plenty of employment-related IP accidents waiting to happen on Twitter: what would happen, for example, if the BBC had sought to register @BBCLauraK as a trade mark and maintained that @ITVLauraK was confusingly similar for identical services: would the registration strengthen its claim to be entitled to the data associated with that Twitter handle?. There's also the little matter of copyright in tweets  (discussed in various places, including here, here and here) -- and in collections of tweets which may be authored by the same person or may be the compilation of tweets from a multiplicity of sources. And even if the rights in Twitter lists are secured for the employer by specific contractual terms, what happens if the employer is in fundamental breach of the employment contract and wrongfully terminates it? These issues should keep a generation of law school examiners busy for ages.

Resting on one's laurels here
List rhapsody here
Liszt Rhapsody for humans here, for cats here
LinkedIn here
Link Din here