In a landmark judgment, Jersey's Royal Court has found that contact information stored in Microsoft Outlook Contacts can be protected by the law of confidentiality even where the individual contact details are available on the internet or on social media sites. Furthermore, a collection of email folders can constitute a database protected by copyright. However, the case also highlighted that care over the ownership of information contained in LinkedIn accounts is needed.
In April 2013, Nautech Services Limited, a Jersey-based recruitment consultancy, obtained an interim injunction against ex-employees, Christopher Inns, Ryan Dunning, Stephen Coleman, their new employer CSS Limited and its MD and Beneficial owner, Kevin Gollop. The injunction prevented them from using both confidential information and information that was subject to Nautech's copyright.
However, Nautech believed that the injunction was being breached and that CSS was continuing to use data copied from Nautech. Inns and the other respondents argued that the names and email addresses of contractors stored in Nautach's Microsoft Outlook Contacts were not confidential because contractors can be contacted by a variety of other means including social media, advertisements and online job forums. They argued that as the information was easy to obtain it could not be confidential.
The Court rejected this and found that the database of contacts was at the heart of Nautech's business and that there was no publicly available 'directory'. The court found that the database of contacts was self-evidently of value.
The finding is important because it illustrates that where an employer collects together relevant contact details, even if the individual details are publicly or easily available, the collection will still be confidential. In these circumstances it will be unlawful for an employee to copy the list of contacts from Microsoft Outlook or elsewhere and take them to a new employer.
This is positive news for employers as it highlights that even if work contacts are copied to a mobile device owned by the employee, those contacts still belong to the employer and should not be copied or used without the authority of the employer.
Furthermore, under Jersey's law of copyright, a database can be protected if its contents can be considered the author's own intellectual creation. In doing so, the database is considered a 'literary work'. In this case, Inns, the 'author', had sorted and allocated client information into folders and sub-folders using his own significant knowledge and experience of the industry. In doing the database was considered to be Inns' own intellectual creation and a 'literary work',resulting in a breach of copyright.
Again, this is good news for employers as it means a collection of email folders can be consider a database which is protected by copyright as the method of filing has involved sufficient expertise, thus giving employers an additional layer of protection against their data being copied and used by competitors.
Inns also admitted copying his gmail contacts into a new LinkedIn account set up after he left Nautech. Due to the structure of LinkedIn, it is very common for employees to use their own profile to collect work contacts on behalf of an employer. The Court had to consider whether the information contained and maintained within Inns' own LinkedIn account on behalf of Nautech belonged to the company or Inns personally.
As the user agreement with LinkedIn states that the user owns the content and information contained in the account, the implication was that it belonged to Inns in the absence of an agreement with Nautech to the contrary. This was regardless of the fact that Nautech paid for the premium account, and the email used by Inns to administer the account was his Nautech email.
The message for employers is that they should ensure that users who administer LinkedIn accounts on behalf of companies should assign their rights to the company. Not doing so may mean they risk being locked out of the account when the employee leaves. Or, worse still, the employee taking the contact information contained within the account to a competitor.
Elena Moran, Partner at Collas Crill who represented Nautech said: "This case should be a warning to all employers to ensure that they put in place an agreement with the employee that all rights to the LinkedIn account are assigned to the employer and that the employee has no right to take the contact information with them when they leave.
"The proliferation of mobile devices and home working makes it increasingly difficult for companies to stop their data being copied by employees. In many cases employers will want employees to have work contacts on their mobile phones or home computers so that they are always available. Even if the data is on an office workstation computer it takes minutes to export and copy onto a mobile device huge quantities of data that it has taken the employer months or years to collect."
Collas Crill instructed London IP barrister Madeleine Heal of New Square Chambers, Lincoln’s Inn to assist in the preparation and trial of the case for Nautech.