Social Media And Trade Secrets

Employers encourage key employees, particularly sales employees, to use a wide variety of social media sites including Twitter, Facebook, and LinkedIn to connect with customers and prospective customers.

Professional firms encourage their members to publish articles on blogs (and websites like this) to promote knowledge and skill to their customers and prospective customers. All is well until there is a break in the relationship.

Employers are entitled to protect and keep the relationships they encourage their employees to enter into. In the good old days it would take some effort for a former employee to reconnect with all of the contacts he had made with or for an employer. In the present, those contacts can be re-established with a click of a mouse.

The issue of entitlement to use contact information gathered in social media sites is by no means settled. There are awkward distinctions made in the court decisions between information that could be memorized or in the public domain and information committed to writing or electronic storage. There may be distinctions drawn depending on the e-mail address associated with the social media account.   If the employee uses a company account as opposed to a personal account, perhaps the employer has a better case to prevent the employee from accessing the account after the employment comes to an end.

Practically speaking, employers in the future will face a greater tendency for former employees to quickly access a client or customer base.  Even if such access is an illegal misappropriation of employers’ confidential information, the only means of preventing access is by complete control of all social media sites by the employer or the use of injunctions to try and prevent access to the information.  The problem is injunctions are not lightly granted and involve a significant investment in legal fees.

The moral of the story is employee use of social media sites to promote the business of their employers is a very cost-effective way of marketing but it comes with a price with respect to control over confidential information such as customer lists.

Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached at 250-869-1215 or [email protected].

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