Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Lawrence W. Gallick

Social Links: If the Suit Fits

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IntroductionIn June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced based on the recommendations of the Hargreaves Review. Surprisingly, some of the exceptions had been dramatically pulled from the legislative slate at the last minute. However, the UK government has now upheld its subsequent promise to re-publish the statutory instruments for the infringement exceptions for (1) personal use, (2) parodies and (3) quotations, with new legislation on all three subjects that came into force on October 1, 2014.Almost in parallel, a European ruling and an Advocate General opinion have helped to prepare for the arrival of the two statutory instruments, with commentary on (i) the scope of parody and (ii) in relation to personal use, the impact of copyright levies.The New LegislationTwo new regulations have come into force, amending the Copyright, Designs and Patents Act 1988 (the “CDPA”) to include new exceptions for copyright infringement. The first – the <a href="http://www.legislation.gov.uk/uksi/2014/2356/contents/made" target="_blank" rel="noopener">Copyright and Rights in Performances (Quotation and Parody) Regulations 2014</a> (the “Quotation and Parody Regulations”) – extends the provisions for quotations of copyright-protected works (having previously only been available for criticism and review), and creates a new provision for parodies.  The second regulation – the <a href="http://www.legislation.gov.uk/uksi/2014/2361/contents/made" target="_blank" rel="noopener">Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014</a> (the “Personal Copies Regulations”) – concerns making copies of copyrighted works for personal use.QuotationFrom October 1, 2014, the free quotation of copyright protected works is no longer limited to reporting current events or to works of criticism or review. The Quotation and Parody Regulations, inserted into the CDPA as section 30(1ZA), now permit quotation for any purpose, provided that:<ul><li>the work quoted has been made publicly available;</li><li>the use of the quotations constitutes “fair dealing” with the work;</li><li>the extent of a quotation is no more than is necessary for the purpose; and</li><li>the quotation is accompanied by sufficient acknowledgment to the copyright owner (unless this is impossible).</li></ul>The UK Intellectual Property Office has stated that this amendment will help to save costs on copyright clearance, support free expression and align UK law with the rest of Europe. However, as anticipated in our previous alert, the Quotation and Parody Regulations do not provide a definition of “quotation”, or guidance as to how extensive a “quotation” is allowed to be. This may place undue pressure on the meaning of “fair dealing” as UK courts seek to define the scope of the exception.ParodyThe new exception for parodies allows fair dealing with a work for the purposes of caricature, parody or pastiche (section 30A of the CDPA) and provides that fair dealing with a recording or performance  (section 2A to Schedule 2 of the CDPA) for the purposes of parody does not infringe copyright conferred in the performance or recording. This change now means that the permission of the copyright holder will no longer have to be obtained, provided that the use of the original work is fair and proportionate.  This is good news for British comedians and artists, it would seem, unless, of course, it is their work that is being parodied.However, an EU court ruling on parodies in September 2014 has already placed some restrictions on the new legislation. In Deckmyn v Vandersteen C-201/13, the Court of Justice of the European Union (the “CJEU”) defined a parody as something that evokes an existing work while being noticeably different from it and constituting an expression of humour or mockery. The CJEU also stated that national courts must strike a balance between copyright owners’ interests and mimickers, and that copyright owners have a legitimate interest in disassociating their work from a parody, if the parody involves a discriminatory message.This creates a whole new checklist for UK courts to consider, alongside the usual fair dealing test. Judges will have to also hold a view on whether the parody (i) strikes a fair balance, (ii) differs noticeably from the original work, and (iii) is sufficiently humorous. In particular, the last of these requirements may worry budding parodists, who could end up having to justify their comedy in front of a very different audience than first intended.Personal CopiesThe Personal Copies Regulations, incorporated into the CDPA as section 28B, now allow consumers to make personal copies of content (other than computer programmes) they have bought, as long as (i) the copy is for their own private and non-commercial use, (ii) the copy is not an infringing copy, and (iii) the content has been lawfully acquired on a permanent basis.  The UK government’s hope is that this new exception will cause UK law to reflect common consumer practice more closely in this area.The personal use exception contains some interesting features:<ul><li>Temporary vs. permanent copies – Any copies of works that have been borrowed, rented, broadcast, streamed or obtained using any other technology, which allows for only temporary access to a copy are not “lawfully” acquired and would not benefit from the exception. For example, copying a show from a TV streaming service is not allowed.</li><li>Cloud services – Copies can be made for “back up” and “format-shifting”, provided that the copy is accessible only to the individual and the data storage provider. This feature has been included, perhaps in an effort to assuage rights holders’ concerns about P2P sites.</li><li>Technological protection measures – To ensure that copyright owners do not unduly prevent copying of content for personal use, there is a procedure to submit complaints to the Secretary of State, in the event that a technological measure prevents a copyrighted work from being copied for personal use (see section 296ZEA of the CDPA).</li></ul>It had been thought that there might be some concession made, such as copyright levies on storage media, to the “fair compensation” lobby that has complained that the personal use exception may cause financial detriment to rights holders.  However, the UK government has given no indication that any such compensation system is to be introduced.  It is worth noting that some EU countries already have such levies in place; however, the decision whether to introduce levies lies with each Member State.  This determination was re-affirmed in a recent Advocate General opinion in Copydan Båndkopi v Nokia C-463/12. A final decision in the case has not yet been issued and we will consider the implications of the CJEU judgment on the UK position, once a definitive ruling has been made.ConclusionThe personal use exception remains controversial and faces criticism from rights holders such as musicians, who could lose out on approximately £58 million in revenues a year, as a result. Further, the relationship between the personal use exception and temporary content apps such as Snapchat poses interesting questions, for users and companies alike.There are no guidelines as to what constitutes a “quotation” and although there are guidelines as to what constitutes “parody” the inherently subjective nature of aspects of those terms allows room for disagreement.The initial uncertainties about the limits of the two new exceptions may trouble rights holders, especially adding the concern that users will be emboldened to stretch boundaries. This is in turn seems likely to lead to judicial intervention.  So, whilst the new exceptions align the UK more closely with other parts of Europe, commercially these changes may result in some copyright owners being forced into selective, strategic litigation in an effort to protect their works.

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Mercedes Samavi is an associate based in the London office of Morrison & Foerster and a member of both the Technology Transactions Group and the Global Privacy Group.
Mercedes advises domestic and int

Mercedes Samavi

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Copyright: Europe Explores Its Boundaries – New UK Infringement Exceptions – The Ones That Came Back Again

Copyright: Europe Explores Its Boundaries – New UK Infringement Exceptions – The Ones That Came Back Again

Introduction In June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced b

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PRCA) v Newspaper Licensing Agency Ltd (NLA) and Others). In a ruling that some have hailed as a victory for common sense, the CJEU declared that browsing freely accessible copyrighted material on the Internet does not constitute a copyright infringement, and on-screen and cached copies will constitute temporary copies for the purposes of Article 5(1) of the InfoSoc Directive ( EC Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”) was introduced in 2001 to meet the challenge of the Internet, e-commerce, and digital technology).BackgroundThe case concerns the PRCA, which is an association of public relations professionals, and the NLA, which is a body set up by UK newspaper publishers for the purpose of collective licensing of newspaper content. The PRCA’s members use a media monitoring service offered by Meltwater which involves Meltwater sending emails to users containing headlines of articles which are then linked to the rights holder’s website. Users can also access search results on Meltwater’s website. (It should be noted that if a website has a paywall, the user will have to pay for access to the material on the same terms as everyone else – the link does not enable the user to avoid the paywall.)The NLA argued that Meltwater’s customers needed various licences to access the rights holder’s material, including: (i) a licence to use the temporary on-screen and cached copies of search results created when the user viewed search results on Meltwater’s website and (ii) a licence to use the temporary on-screen and cached copies of an article created when the user clicked on a link and viewed an article on the rights holder’s website. The PRCA claimed that these temporary copies fell within the copyright exemption detailed in Article 5(1) (as transposed into UK law by Section 28A of the Copyright, Designs and Patents Act 1988).Article 5(1) provides an exemption from copyright infringement based on the following cumulative conditions where:<ul><li>Copying is temporary.</li><li>Copying is transient or incidental.</li><li>Copying is an integral and essential part of a technological process (i.e., (1) the acts of reproduction are carried out entirely in the context of the implementation of a technological process and (2) the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts).</li><li>The sole purpose of copying is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work.</li><li>Copying has no independent economic significance.</li></ul>Both the UK High Court and UK Court of Appeal agreed that PRCA members needed a licence from the NLA in order to receive the Meltwater service. The PRCA appealed to the UK Supreme Court.UK Supreme CourtThe UK Supreme Court held that both on-screen and cached copies satisfy the temporary copies exemption detailed in Article 5(1). However, given the potential transnational effect, the UK Supreme Court decided to stay the proceedings and request a preliminary ruling from the CJEU as to whether Internet browsing falls within the exemption of Article 5(1).European Court of JusticeThe CJEU has agreed with the UK Supreme Court that Internet browsing falls within the Article 5(1) exemption, on the following grounds:<ul><li>Temporary – On-screen copies are temporary as they are deleted when the user moves away from a given website, and cached copies are temporary because they are automatically replaced by other content after a period of time.</li><li>Transient and Incidental – On-screen copies only exist to the extent necessary to view the website and are therefore transient. Although cached copies are not deleted when the user stops viewing the website, they are incidental because they do not have a purpose independent of the technological process.</li><li>Integral and Essential – On-screen copies and cached copies are an integral part of the technological process because they are created and deleted by the technological process used for viewing websites and they are essential because the viewing of websites would not function correctly and efficiently without them.</li></ul>In order to rely on the Section 5(1) exemption, the copies must also satisfy Article 5(5) of the InfoSoc Directive (i.e., the Article 5(1) exemption only applies in certain special cases which do not conflict with a “normal exploitation of the work” and “do not unreasonably prejudice the legitimate interests of the rights holder”).On Article 5(5), the CJEU held that internet browsing should be considered a ‘special case’, and that the copies did not unreasonably prejudice the “legitimate interests” of the rights holder (on the basis that Article 3(1) of the InfoSoc Directive requires a website publisher to obtain the consent of rights holders before publishing any content). The CJEU also held that the creation of copies in the course of viewing a website constituted a ‘normal exploitation of the work’.The case will now be referred back to the UK Supreme Court for confirmation of its final decision based on the CJEU’s preliminary ruling.Browsing ImplicationsWith this decision, the millions of users who browse the Internet across Europe every day can continue as before, without the need for specific “browsing licences”. However, if users print, download, store or email any copyrighted material this will fall outside the exemption. So, where rights holders do not consent to users’ printing, downloading, storing or emailing any copyrighted material that is otherwise freely available for browsing, they should continue to ensure that these prohibitions are explicit in website terms and conditions.Whilst individual users may now be seen as “innocent browsers” and exempt from infringement, rights holders retain meaningful remedies. The CJEU relied on the fact that Article 5(5) requires that the rights holder’s permission is obtained before a publisher can post its content on the Internet. Accordingly, it will remain very important for rights holders to monitor the posting of any copyrighted materials on the Internet and take steps to remove any content that is posted without permission.Beyond Browsing; StreamingAlthough the CJEU did not refer to streaming in its ruling, there has been some subsequent speculation that this decision could, by analogy, be extended beyond browsing to web streaming. In turn, this has raised concerns that streaming of pirated content in Europe may increase with browsers freed from the threat of possible sanctions for copyright infringement.These concerns may be supported by the facts that:<ul><li>In the UK Supreme Court rulings Lord Sumption stated “it has never been an infringement … for a person merely to view or read an infringing article in physical form…All that Article 5.1 of the Directive achieves is to treat the viewing of copyright material on the internet in the same way as its viewing in physical form”; and</li><li>The proposed Ofcom anti-piracy code (yet to be implemented in the UK) is targeted at Internet users who are suspected of illegally downloading copyrighted material. The draft code makes no reference to ‘streaming’.</li></ul>It may be that enjoyment of infringing streamed content will be found to fall with the Article 5(1) exemption. However, we would suggest that caution is more appropriate here than panic. Streaming involves a variety of different technologies and processes, and the copyright implications of each will need to be considered on its merits. Furthermore, the InfoSoc Directive explicitly contemplated browsing as being an act for which the Article 5(1) exemption was designed; and we should not be surprised that the exemption has been successfully applied. By contrast, and as possible comfort to rights holders, the Recitals to the InfoSoc Directive also explicitly contemplated that “new uses of copyright works” may require more limited exemptions, and therefore greater scrutiny.So, in line with our somewhat arbitrary scoring system in this series of Alerts, we are calling this a shared victory for both copyright holders and the Internet. Browsing continues as a functional freedom and rights holders can still seek meaningful remedy for copyright infringement.

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Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

Copyright: Europe Explores its Boundaries Part 3: “Meltwater” – EU rules that browsing does not need a licence – a victory for common sense (or for pirates)?

On 5 June 2014 the European Court of Justice (CJEU) published its decision in the “Meltwater” Case C-360/13, (Public Relations Consultations Association Ltd (PR

Following our <a href="http://www.sociallyawareblog.com/2012/12/03/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts/">post on U.S. lawsuits concerning the ownership of LinkedIn and Twitter accounts</a>, we report on a recent United Kingdom High Court ruling that considered who was entitled to operate four <a href="http://www.linkedin.com/directory/groups/">LinkedIn Groups</a>, and other UK cases that have addressed related issues.Before we describe the High Court’s ruling, it is important to provide a bit of background.  As with other social media services, opening a LinkedIn account requires an individual to enter into a contract with LinkedIn.  LinkedIn’s <a href="http://www.linkedin.com/legal/user-agreement">User Agreement</a> prohibits account holders from transferring their accounts to another party.  Strictly speaking, then, the question is less one of, “Who owns a given LinkedIn account?” than the equally important question of who owns or controls the contacts accumulated by that account:  are those contacts the confidential information of the account holder’s employer, or are they the property of the account holder himself or herself?  And what about LinkedIn Groups, described on LinkedIn as “a place for professionals in the same industry or with similar interests to share content, find answers, post and view jobs, make business contacts, and establish themselves as industry experts”?  Does an employer have any proprietary interest in a LinkedIn Group that was set up and operated by an employee in connection with his or her employment, once that employee leaves the company?Before third-party networks such as LinkedIn existed, the position in the UK with regard to the ownership of company contact lists and databases was relatively straightforward:  materials created during the course of employment are owned by the employer and are the employer’s confidential information.  However, in the social media context, the position is not so clear-cut.  If employees are encouraged to use LinkedIn in connection with their employment and so accumulate contacts, can the employer prevent employees from using those contacts when their employment terminates?Although there is not, as yet, any definitive UK legal authority on the issue, two cases now give an indication of the position that the UK courts will likely take on this issue.First, back in 2008, in the UK High Court case of <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2008/745.html">Hays v Ions</a>, Mark Ions, a former employee of recruitment company <a href="http://www.hays.com/">Hays</a>, was ordered to hand over details of contacts that he had migrated from his work email address book to his personal LinkedIn account.  Hays had alleged that Ions transferred the contacts while working at Hays with a view to their subsequent use in connection with his own rival business.  Ions argued that Hays had encouraged his use of LinkedIn to connect with clients and that, once the Hays contacts accepted his own LinkedIn invite, those contacts ceased to constitute Hays’ confidential information because the information was then accessible to others on LinkedIn.  The court did not accept Ions’ argument and noted that, even if Ions had had permission to use client email addresses to connect with clients, it was unlikely that this extended to the use of such information outside his employment with Hays.Despite ordering the disclosure of the Hays contacts and all emails and documentation relating to such contacts and any business obtained from them, the judge in that case held that Ions was not required to disclose all of his LinkedIn contacts to Hays because those contacts could include many persons who had no contact with Hays.  This suggests that the judge accepted that the entire LinkedIn account, although originally operated by Ions in the course of his employment, was not material proprietary to Hays, his employer.We now have a second court ruling in the UK relating to the ownership of LinkedIn accounts.  In July 2013, the UK High Court considered who was entitled to operate four LinkedIn Groups that had been set up by an ex-employee when that employee left the company.  In <a href="http://www.bailii.org/ew/cases/EWHC/Ch/2013/1881.html">Whitmar Publications Ltd v Gamage, Wright, Crawley and Earth Island Publishing Ltd</a>, three employees had resigned from Whitmar to work for <a href="http://www.earthisland.co.uk/">Earth Island</a>, a rival publishing company that the employees had set up a few months earlier.  Whitmar alleged that the defendants had taken steps to compete against Whitmar while still employed by the company, in that they had misused Whitmar’s confidential information, infringed its database rights and breached their terms of employment.  Concerning the LinkedIn Groups at issue, Whitmar claimed that although the Groups had been managed by Ms. Wright—one of the former Whitmar employees—on behalf of Whitmar as part of her employment, the defendants had used them for the benefit of their rival business while still employed by Whitmar.  Whitmar sought an interim injunction to prevent the defendants from using, exploiting or divulging to any third party any of the information contained in these LinkedIn Groups.  Given that this was an emergency application, the court made a preliminary assessment of the evidence only.The court agreed that Whitmar had a strong case that the defendants had been actively competing against Whitmar while still employed by it, in breach of the terms of their employment.  Further, the court rejected Wright’s claim that the LinkedIn Groups were personal to her and merely a hobby; Wright was responsible for dealing with the LinkedIn Groups as part of her employment duties at Whitmar, and the Groups operated for Whitmar’s benefit and promoted its business, as evidenced by the fact that Wright had used Whitmar’s computers to carry out her work on the LinkedIn Groups.  The judge also agreed that information contained within the LinkedIn Groups appeared to have been used as the source of the email addresses used to publicize an Earth Island launch event.Ultimately, the court granted an order requiring the defendants to facilitate the exclusive access, management and control of the LinkedIn Groups to Whitmar, ordering the defendants not to access or do anything that would prevent Whitmar from accessing the Groups, and preventing the defendants from using, exploiting or divulging to any third party any of the information contained in the Groups.  In effect, the judge decided that Whitmar had a good chance of succeeding at full trial based on the available evidence.Since the judgment in the first phase of the case, the parties have entered into an out-of-court settlement that, according to Whitmar’s website, means that the ex-employees will not enter into or fulfill any contract with a number of Whitmar clients or customers until December 20, 2013.  The ex-employees have also returned control of a number of Linked-In Groups to Whitmar.  Unfortunately for legal purists, but maybe happily for the parties, as a result of the settlement we won’t now get to know how the court would have ultimately ruled at full trial.It is also worth noting that, in 2012, a UK employment tribunal case, <a href="http://www.xperthr.co.uk/article/114725/handling-of-allegations-that-employee-posted-confidential-information-on-linkedin-leads-to-constructive-dismissal.aspx">Flexman v BG Group</a>, raised an altogether different issue related to an employee’s use of LinkedIn: can an employee in the UK be dismissed for using LinkedIn to search for job opportunities?In the first case of its kind, the tribunal ruled that John Flexman, an HR manager at BG Group, had been constructively dismissed following a dispute concerning his LinkedIn account.  BG Group had claimed that Flexman breached its social media policies by uploading his CV to LinkedIn and ticking the “career opportunities” box on his LinkedIn profile.  It also accused Flexman of breaching confidentiality by stating on his CV that he was assisting the company in reducing its “attrition rate.”  As a result, the company had ordered Flexman to remove any mention of BG Group from Flexman’s LinkedIn profile, other than his job titles and the dates he had worked there.  Flexman refused and demanded to know the source of the complaint.  After a dispute arose, Flexman faced an internal <a href="http://www.telegraph.co.uk/technology/social-media/8992541/Executive-forced-out-of-job-over-LinkedIn-CV.html">disciplinary hearing</a>, with risk of dismissal, and Flexman eventually resigned and claimed constructive dismissal.  The tribunal upheld Flexman’s claim of constructive dismissal due to unacceptable delays in the company’s dealing of the case and the company’s failure to address a grievance related to the incident.  Unfortunately, the tribunal did not specifically address whether merely uploading a CV and ticking the career opportunities box was, indeed, a disciplinary matter.As with the U.S. lawsuits we described in our <a href="http://www.sociallyawareblog.com/2012/12/03/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts/">earlier post</a> on Socially Aware, these UK cases highlight the need for organizations to have clear social media policies in place in order for employees to understand what is expected of them when using business-related social media accounts.

Recent UK Court Rulings on Employees’ Use of LinkedIn

Following our post on U.S. lawsuits concerning the ownership of LinkedIn and Twitter accounts, we report on a recent United Kingdom High Court ruling that consi

Recent UK Court Rulings on Employees’ Use of LinkedIn