LinkedIn currently have more than 175 million registered users worldwide. Many employees use their LinkedIn accounts for simple, straight forward and low cost marketing purposes. Some of these employees (especially the ones in the more senior roles) will have non-solicitation covenants in their contracts of employment. These non-solicitation covenants will prevent those employees from soliciting those clients whom they worked with whilst at their former employer with a view to them joining them in their new employment. Traditionally these non-employer solicitation covenants could prevent, for example, those employees writing or otherwise contacting those clients to let them know they are moving on (which could be viewed as a way of soliciting them to move with them.) But what about an employee who updates their LinkedIn account following the end of their employment with one employer and provides details of their new employer? In those cases are those employees seeking to solicit the clients of their former employer by doing this? In the recent High Court case of Safetynet Security Limited v Leonard Coppage and Freedom Security Solutions Limited, HHJ Brown QC noted:
‘a general advertisement to the world about availability for custom at a new firm or a specific notification to a client of departure from one firm to another does not cross the borderline; any activity or behaviour beyond would’.
Although this case did not concern online media it does serve as useful guidance on the scope of solicitation. It seems in light of this judgment that by simply updating a LinkedIn account to include new employment details the individual will not be soliciting; anything beyond that (including some form of encouragement by the ex-employee) would amount to solicitation.
In light of this brave new world of social media tools it may be the case that non-solicitation covenants no longer provide adequate protection for a former employer. Employers should be encouraged to focus on putting in place very robust, precise and ultimately enforceable non-dealing covenants in their employment contracts. These appear to be the safest way forward in this changing world.