Not clear who owns your LinkedIn profile

Published in Berlingske Business 25 November 2015

Professional or private? When a person logs into LinkedIn, is it as a private individual or a representative of the workplace? It can be difficult to distinguish between the two when the contacts are primarily work related and the text is prepared by the employer.

By Kirstine Benedicta Lauritzen (reproduction in English)

If a LinkedIn profile is a person’s virtual CV, the contacts are the virtual customer database, and you may not copy customer lists and descriptions of concepts and bring them into a new job. But whether that means you have to delete your LinkedIn contacts when you leave a company depends on the situation.

A number  of years ago, a UK court ruled that a former employee had to delete his customer contacts on LinkedIn that he had created through his former job prior to his resignation. But it can be difficult to judge whether contacts are professional or private.

“We do not have a completely standardized practice for who owns, for instance, LinkedIn contacts. Legally, you may not take the physical customer files with you when you stop a workplace, but when it is integrated into an employee’s digital profile, it is difficult to determine who is the customer and who is not,” says lawyer and partner in Labora Legal Catrine Søndergaard Byrne. “If you equate LinkedIn contacts with an old-fashioned customer database, the conclusion may be, that a company with the help of the bailiff can delete contacts in the same way as bailiffs can take the physical customer files.”

Agreements must be made

In 2013, two former employees in the City Court of Aarhus, were ordered to pay 100.000 DKK each to their former workplace.

They had resigned from their posts to join a competing company.

The employment had ended, but the competition clauses were still valid at the time the employees updated their LinkedIn profiles with information and links to the new employer – a breach of the clause, since the employees’ LinkedIn contacts were also the former employer’s customers.

But the High Court set the decision from the City Court of Aarhus aside and decided in 2014 that the employees had not violated the law. The court emphasized that the former employer had not issued guidelines for employees’ use of LinkedIn in terms of client contacts and in connection to termination. This very fact is crucial according to lawyer Mette Klingsten, who is specialized in labour law .

“I think that the employers in many cases do not have fixed rules that explain what is acceptable and what is not acceptable when it comes to LinkedIn. If not, one can, in my view, update as he or she wishes as long as he/she is loyal and complies with the Marketing Act,” she says.

If the employment contract details that LinkedIn content and LinkedIn customers belong to the employer, it’s a good idea to respect the agreement and not bring contacts into the profile of the new job, explains Mette Klingsten.

“There is not a lot of case law we can lean on, so if an employer wishes to enforce something in relation to LinkedIn, I recommend that clear agreements are made in advance – either by appointment, or when the company professionalizes  the employee’s profile,” she says.