Social Networking and the Employer’s Confidential Information

SME and B2C marketing thinking has many ideas and theories about why and how people buy.

Sometimes we'll buy an item or service because we trust the brand - think of John Lewis for example - but a great deal of business transactions are brought about by knowing, liking and trusting an individual.

There are a number of reasons for this.

It can be time consuming and expensive for a business to establish a corporate brand which is known, liked and trusted enough to bring business in of itself.

For many purchases however, people buy from people.

A potential client will want to engage someone who they feel they can get along with. Someone who "talks their language" or who they feel some empathy with - often in priority to the brand or organisation which that person represents. Also, the power of a personal recommendation cannot be overstated.

We've recognised this ourselves in the way our website introduces our lawyers as approachable people - not just lawyers but rounded individuals with personalities, senses of humour and - would you believe it - interesting lives outside of the office. Prospective clients can check us out online as individuals working together under the Wards banner. As a result, many new clients now come in saying that they feel like they know us already - even before stepping into their first meeting.

Bringing the personal element into a marketing strategy is increasingly important - and very fashionable - for those services where the customer or client has a high degree of personal interaction with a trusted advisor.

This is the reason why business and social networking sites are the focus of so much attention by marketing professionals at the moment.

Professionals are exhorted to build up their own following on Twitter, or to have as many LinkedIn, Facebook or Ecademy contacts as they can carry. When a need arises, or a tweet hits the spot, any of those contacts can ping off an email without the need to search for the right person, break the ice and begin building a relationship.

The initial stages of the relationship (knowing, liking, trusting etc) are already well underway by the time you are keeping up to date with what can sometimes seem to be the most tedious details of someone's work and home life.

Somehow, knowing what someone likes on their toast for breakfast, or where they went on holiday, makes it easier for a Financial Director to consult them about an imminent threat to the profit & loss account

However, this can all have serious implications for the employer.

Building a business based on individuals and their own networks can bring appreciable risks to the information employers prefer to keep confidential - and information which they are under a legal duty to control.

For example: -

• The Data Protection Act requires data to be kept for specific purposes only. Using the automatic contact finders on some networking sites allows third party access to your Outlook contacts - which will almost certainly have detailed client contact information - putting you in breach of the Data Protection Act.
• An employee's profile on social networking sites follows them from job to job. How can employers control what information appears on a former employee's networking entries/contact lists?
• Many of these sites allow recommendations and reviews to be posted which follow the employee, not the employer. These need to be managed as they can reveal details about the employee's clients which should best be kept confidential. Also, is the recommendation really for the business rather than the salesman?
• There are increasing concerns about privacy on Facebook and other such sites.
• Employers need to consider the extent to which their marketing strategy permits individuals, rather than the business itself, to build a following.
• Employees don't need to print off Outlook contacts or sneak a memory stick out of the office to take their contacts with them when they join a competitor. A watertight restraint of trade clause is critical for businesses which are vulnerable to this sort of threat.

For these reasons employers need to:

• keep a handle on how employees promote businesses online & develop a policy about contacts;
• consider implementing a formal policy on what can and what cannot be uploaded - and what should happen to data and contacts if the relationship should come to an end; and
• carefully define confidential information in the contract of employment to minimise disputes when the employment comes to an end.

James Taylor is an Associate Solicitor with Wards Solicitors.