In a recent blog post, Judith Kirkpatrick discusses two British cases dealing with profile ownership on the social networking websites LinkedIn and Facebook [1]. According to Kirkpatrick, the decision in Hays Specialist Recruitment (Holding) Ltd. v. Ions suggests the conclusion that “your LinkedIn profile if used in the course of your employment might not belong to you but to your employer” [2]. Another blogger at Talent Technology Blog reaches a similar conclusion and expresses concern that bully tactics will be used by employers in the digital realm while many judges remain “[living] in the dark ages” [3].
Cases like Hays may indeed pose new challenges to both courts and the public. On the one hand, the judiciary will be called upon to interpret contractual provisions in online contexts. The degree to which courts uphold restrictive covenants in employment contracts, for example, may have significant ramifications for both employers and employees whose business is heavily reliant on contacts that are made or stored online. When employees are granted access to voluminous client databases or extensive online networks, difficulties may arise as courts attempt to demarcate what information should receive protection as confidential and what information should be transferable to new employment. In addition to the challenges courts may face when deciding whether information ‘belongs’ to an employer in the online context, Hays suggests that evidentiary issues may also arise [4] . ‘Copying and pasting’ or printing contact information from an online source in violation of an agreement may be difficult for a complainant to document.
At the same time, cases like Hays serve as a reminder to members of the public who connect with others on social networking websites that the allocation of rights to intellectual property and the protection of confidential business information online may still be determined by contract. For example, Facebook’s ‘Terms of Use’ agreement grants the website an “irrevocable, perpetual, non-exclusive, transferable” license to use posted user content for “any purpose, commercial, advertising, or otherwise” until it is removed [5]. While many users are no doubt content with this, others do not even consider the scope of the license they are granting. In the business context, a contract of employment might modify the rights that an employee retains in an online profile in addition to any licenses claimed by the site itself.
In this light, it seems that answering the question “Who owns your profile?” will fall in part to the judiciary and in part to the public. Judicial decisions may further refine the allowable scope of restrictive covenants as they relate to online business contacts. At the same time, within judicially defined limits, it is likely that private individuals will retain a degree of freedom to contractually allocate the rights associated with their online profiles. It will not just be a challenge for courts, but also for private individuals to move out of the so-called ‘dark ages’ and adapt to the realities of online networking.
1. Judith Kirkpatrick, “Who owns your profile – two recent cases on social networking sites” on Naked Law, < http://nakedlaw.typepad.com/naked_law/2008/08/who-owns-your-p.html> (posted 13 August, 2008).
2. [2008] EWHC 745 (Ch) [Hays].
3. “Hays Recruitment ‘bully boys’ vs Mark Ions” on Talent Technology Blog, <http://blog.hirestrategies.co.uk/erecruitment/2008/06/hays-recruitmen.html> (posted 13 June, 2008).
4. Supra note 2 at para. 16.
5. “Terms of Use” on Facebook, < http://www.new.facebook.com/terms.php> (posted 23 September, 2008).