Updating of LinkedIn Profiles
Two former employees' updating of their LinkedIn profiles regarding future employment was not in contravention of their non-competition clauses. This was established by the Danish Western High Court in its judgment of 16 December 2014.
The case dealt with two employees who had terminated their employment to take up work in a competing company. As both employees were subject to a noncompetition clause, they had agreed with the new employer that their employment should not commence until the expiry of the non-competition clauses.
While still being subject to the non-competition clauses, both employees updated their LinkedIn profiles with information about their new employer, accompanied by a link to the homepage of the company in question.As LinkedIn does not contain a function for future commencement of employment, it appeared from the LinkedIn profiles that the employees had commenced work with a competing company in the period where they were bound by the non-competition clauses. However, the court had regard to the fact that the employees - in spite of the date of appointment announced on LinkedIn - had not performed any assignments for their new employer during the restrictive period of the non-competition clauses.
Subsequently, the question remained whether an announcement of future employment on LinkedIn in itself constituted a violation of the non-competition clauses.
The former employer was of the opinion that the updating constituted a violation of the former employees' noncompetition clauses and claimed that LinkedIn was aimed at creating new business connections, for which reason the announcement of future employment on LinkedIn promoted the commercial interests of the new employer. Therefore, the former employer argued that already at the time of the announcement on LinkedIn, the employees had started their services for the new employer and thus had acted contrary to their obligations under the noncompetition clauses.
Unlike the City Court, the High Court found that the LinkedIn updating did not constitute any direct or indirect work performed for the new employer. Therefore, the Court did not consider the LinkedIn updating as a violation of the non-competition clauses and consequently the two employees were discharged from paying liquidated damages.
In this connection, the High Court attached importance to the fact that although being connected to a number of persons within the relevant trade, the employees primarily carried out professional trading through stock exchanges and brokers where personal relations must be considered as being of less importance. Furthermore, the Court had regard to the fact that the former employer had not stipulated any detailed guidelines for the employees' use of LinkedIn and in this respect for the situation of a termination of employment.
Although the judgment provides a certain guiding principle as to the limits to (former) employees' activities on the social media, the judgment is a specific decision based on the merits of the case where the nature of the relevant employees' work has played a part.
Therefore, the judgment cannot support the point of view that it is generally not in contravention of a loyalty obligation/non-competition clause to update a profile on the social media before expiry of the loyalty obligation/non-competition clause.