Recruitment and intellectual property – LinkedIn

Social media sites, such as LinkedIn, are playing an increasingly important role in the recruitment industry. However, when used for business purposes, who owns the intellectual property rights according to law?

social media and intellectual propertyRecruitment is an old industry. As long as there are companies that require new staff, recruitment will remain viable as a business. Recruitment, like many other industries, has evolved to meet the requirements of the modern day business. In this regard, it has entered the digital revolution.

Social media in particular has become an integral part of not only our social lives, but also our professional lives. Headlines are made on a daily basis revolving around Facebook posts, tweets, blogs and all manner of online methods of communication.

In recent years we have seen criminal actions brought against social media postings, defamation cases, data privacy issues, and even intellectual property challenges. The latter of these is a particularly contentious issue at present within the recruitment industry.

Who owns intellectual property?

As recruitment continues to become increasingly digitalised, we find ourselves facing new issues. Does an employer ‘own’ a LinkedIn account used primarily for business? If it was set up for, and has been used solely for, the purpose of business this may logically be the case. Who, however, owns the intellectual property of a ‘personal’ LinkedIn account set up prior to the employee joining the business? If the account is then used for business purposes, the line is blurred.

A good, logical case may be made by both employer and employee as to ownership – but who owns the intellectual property rights according to law? There is a growing body of case law to attest to the difficult nature of such decisions.

What does this mean for recruitment firms?

The obvious and proactive response is to tighten up (or create in some instances) a ‘social media policy’. This would seek to address different scenarios so as to provide clear guidance on who owns the account.

In the absence of any statutory law to confirm such situations, the law is currently being shaped by case law (‘common law’). The implication of this is that although a social media policy is given weight to in a court of law, it is not as yet legally binding and as such serves more as a deterrent than as something an agency can point to in order to defend their stance, should conflict arise.

This leaves firms vulnerable to the potential that an employee could electronically take an entire client base with them with no repercussions, with the only form of redress provided through a costly and often lengthy court battle. Obviously, this is a dangerous predicament for an agency to be in.

As the case law comes through on this area of law, it will be well worth agencies keeping abreast of the developments they bring.

We’re always keen to hear from you. Please feel free to share your thoughts and comments with us in our LinkedIn group.

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