Whether a departing employee can keep it may depend on where the information came from
Question: Can a confidentiality clause in an employment agreement demand an employee delete contacts in his social network accounts (such as LinkedIn) that he acquired through his job if the client contact information is privileged information?
Answer: Whether a confidentiality clause would be upheld by a court depends upon a number of factors. Generally, courts are reluctant to enforce clauses which restrain a former employee from engaging in his trade. As a result, restrictive covenants relating to non-competition, non-solicitation and the use of confidential information will be enforced only to the extent that they are reasonable.
Reasonableness is determined by reference to the nature of the proprietary interest the employer is trying to protect, the scope of the clause in terms of duration, geographic location, overall fairness between the parties, and what the former employee is being restrained from doing. A covenant will be much less likely to be enforced if it is directed at restricting competition generally, instead of simply prohibiting direct solicitation of the employer’s clients.
Out of all of these clauses, confidentiality clauses are normally the most likely to be enforced. However, while confidentiality clauses are often drafted quite broadly, courts will often take a narrow view of what truly qualifies as “confidential information.”
Employees generally are not permitted to use confidential information such as customer lists which have been removed from the employer’s premises. However, courts will not prevent former employees from using their own personal knowledge and skill, including knowledge relating to client contact information. Therefore, an employee’s own knowledge of customer names, needs and preferences generally does not qualify as confidential information, and an employer usually cannot make it confidential simply by stating as much.
The same general principles apply in determining the confidentiality of contacts on social network accounts. If an employee obtained the contact information from customer lists taken from the employer’s premises, then the information would likely be considered confidential, and a confidentiality clause could be used to require their deletion.
On the other hand, if the former employee constructed the contact information based on a personal diary, or from her memory using a telephone directory, it likely would not be considered confidential information. As a result, a confidentiality clause could not effectively require the employee to delete the contacts. In this particular case, it would be important to carefully review the actual wording of the confidentiality clause and the circumstances surrounding the employment agreement to assess enforceability. Beyond that, if the client contact information is truly privileged and confidential, and not otherwise available to the employee, it should be possible to require deletion of such confidential information regardless of the format, even if it is on a social network.
For more information see:
•RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc., 2008 CarswellBC 2099 (S.C.C.).
•Imperial Sheet Metal Ltd. v. Landry, 2007 CarswellNB 298 (N.B. C.A.).
