Social media contacts are valuable in business, but who owns them? The employee? The employers? Or nobody?
One high-profile case, PhoneDog v Noah, over Twitter contacts, was settled out of court and so provides little guidance. But now a Canadian case has gone to judgment and been confirmed on appeal (pdf) this month.
And the winner is the employees, in this case three former employees of recruitment company Eagle Professional Resources.
In deciding (pdf) for the employees the judge accepted the argument that social media contacts can be considered public information. In other words, they may not really be owned by anyone.
“In this case, there is no evidence from Eagle, other than a very bald assertion, that it had any proprietary interest entitled to protection. According to the defendants, the information that they learned at Eagle was all publicly available and obtained from such sources as social media websites.”
However, the judge also noted the weaknesses of Eagle’s case and in its evidence and indicated the non-compete clause in the employees’ contracts was overly broad and unenforceable anyway. The fact that the Eagle did not challenge the employees’ explanation at the first hearing in April, did not help either.
“The appellant’s bald allegations were denied by each of the individual respondents. Each of the specific incidents raised by the appellant was fully explained by the respondents," the appeal ruling says.
"The appellant did not cross-examine the respondents or otherwise challenge the explanations they tendered. However, the failure to cross-examine did not mean that there were live issues for trial, despite the appellant’s suggestion to the contrary.”
Canadian lawyer and blogger Lisa Stam writes that traditionally employers owned the customer list but there is tension arising as individuals claim ownership of their own social networks.
“It is established law (and common sense) that a company cannot assert confidentiality over otherwise publicly available information,” she writes.
The Canadian case was a summary judgment, lost by the employer without going to a full hearing. Therefore the judgment is light on detail, Stam writes.
She says the real battle will continue to be over contacts made during the course of business.
“Are these connections your extended network that you brought into the employment relationship that you can take with you when you leave? Or are they the employer’s customer list in which the employer has a proprietary interest?” she asks.
In other words, while employees may be able to argue the information in their social media accounts is public, how courts will react will depend on the facts and the quality of evidence they are presented with.