Whitmar Publications Ltd v Gamage and others – Former employee ordered to give employer log-in details of a LinkedIn Account.
Mr Gamage, Ms Wright, and Mr Crawley were long-term senior employees of Whitmar Publications Ltd. They all resigned on 7 January 2013, stating their intention to set up a competing company, Earth Island.
It came to light that, while they were still employed by Whitmar, they had allegedly:
- attempted to solicit a number of Whitmar’s clients and staff for their new enterprise;
- used Whitmar’s confidential information to create media information for Earth Island;
- used LinkedIn groups managed on behalf of Whitmar to market their new company;
- taken Whitmar’s circulation and customer databases with them when they left.
When challenged with regard to the use of the LinkedIn groups, Ms Wright claimed that the groups were her own personal hobby and not linked to Whitmar’s business. She therefore refused to reveal the username and password to Whitmar and continued to use the account and the contacts after her resignation.
Whitmar commenced proceedings against their former employees, claiming damages and also seeking an injunction restraining them from using and disclosing confidential information obtained during their employment.
The High Court upheld Whitmar’s application for an injunction, pending a full trial of the issues, finding that there was strong evidence that its former employees had been taking active steps to compete with Whitmar for over a year in advance of their resignations. The High Court ruled that the customer and circulation databases amounted to information that was confidential to Whitmar and that the information removed by its employees – inclusive of the LinkedIn information – was sufficient to provide Earth Island with a competitive advantage. Wright was ordered to deliver up details to enable Whitmar to access and amend the database.
Employees should take note that a LinkedIn account that is established in the course of their employment by a company and used to market that company’s activities, may well be the property of the company, even if the employee has also been using the account as a personal contact database.
Employers, on the other hand, need to remain vigilant and aware of the continually evolving world of social media. Employers should also be aware of the potential damage that can be caused to their business in the event of the defection of an employee who may have been using such an account to build and maintain an online contact base.