In Whitmar Publications Ltd v Gamage, the High Court granted an interim injunction to prevent former employees of Whitmar from misusing confidential information to gain unfair commercial advantage in their competing publishing business. This included an order requiring one employee to hand over control of her LinkedIn accounts to Whitmar.
Mr Gamage and other senior employees set up a competing business several months before resigning from Whitmar. There was evidence that they had attempted to solicit clients and employees of Whitmar, misappropriated confidential information and removed contact details for at least 450 clients. One of the employees had also used various LinkedIn groups to promote the new business, for example, by inviting contacts to a launch event and on leaving employment refused to hand over log in details for the LinkedIn accounts.
The employees in this case did not have written contracts of employment. However, due to the strength of the evidence relating to their activities, the company succeeded in obtaining an interim injunction by relying on the implied duty of fidelity and good faith. The employees were prohibited from contacting Whitmar's clients and ordered to hand over control of the LinkedIn accounts to Whitmar, including log on and password details. The court rejected the employee's argument that the LinkedIn accounts had been for personal use, and that the LinkedIn user agreement states that it is personal to the account holder. Significantly, these accounts were created during employment for Whitmar's benefit and to promote its business, and had been maintained on a work computer. The position would be less clear if the accounts had been operated from a home computer, or used for both personal and professional purposes.
This case emphasises the importance of having clear contracts and policies in place for the use of social media, particularly for employees who use personal accounts to promote the business. It is also worth considering including these matters in contractual post-termination restrictions.
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