Often it takes the departure of an influential employee to prompt an employer to review what safeguards are in place to protect their confidential information
from misuse. As companies and employees embrace the use of social media as a business tool, employers need to be more vigilant and proactive in protecting
their business edge.
An employee owes a general legal duty of confidentiality to the employer even if they do not have a written employment contract or the contract is silent on the topic. However, it is far better to have a contractual provision to rely on. The general duty only provides protection where the information is truly confidential and is not trivial. If the information becomes part of the employee's "know how" and skill it will not be protected by the general duty of confidentiality.
While confidential information is typically broadly defined in an employment contract, it is also best to specifically include the types of "make or break" information that is applicable to your business. Unless the information is accessible in the public arena, a court is likely to uphold a contractual obligation to maintain confidentiality.
If an employer needs to rely on the general duty of confidentiality, then the issue of what is publicly accessible or trivial is not always easily answered. For example, in the UK a recruitment firm retained ownership and confidentiality in a former employee's LinkedIn contacts gained during the period of his employment on the basis that LinkedIn was a common forum used by companies in the recruitment industry (and particularly by the employer) to gain contacts and referrals of work.
These circumstances are not unique to the recruitment industry as a number of industries draw heavily on connections made in social media forums for business growth. Ownership of social media contacts, such as LinkedIn contacts, is yet to be considered by the Australian courts, and there is uncertainty as to whether this information is confidential.
Employers should limit their exposure to potential court proceedings and arguments over whether or not information is truly confidential by taking the following steps:
CK Agribusiness Consultant Tim Ferrier was recently listed in Doyle's Guide to the Australian Legal Profession as a Preeminent Leading Agribusiness Lawyer (Queensland) for 2018. To make this list requires feedback from various sources but most importantly our clients. We thank our clients for that valuable input and look forward to assisting in your continued commercial growth. VIEW MORE