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If it was created in the course of business

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Employers could have grounds to demand ownership of employees' social networking profiles, such as those generated on Facebook, MySpace or Bebo, according to a leading intellectual property lawyer.

The news comes in the wake of a court ruling which forced a journalist to hand over the contents of his contacts list to his former employer after he left that company.

Employers could insist on gaining ownership of some social networking content, though only in limited circumstances, according to IP law expert Catrin Turner of Pinsent Masons, the law firm behind OUT-LAW.COM.

"If a social networking site is used to hold any information which relates to your employment, if that information is prepared in the course of your employment you are dealing with company property," said Turner.

The profile, or the elements of it that are work related, would belong to the employer despite the fact that it was created and is hosted in a virtual environment primarily designed for personal interaction.

"If [the employer] can argue that you have created something and it's in the course of your employment, it's irrelevant where it's stored because the law doesn't look at where it's stored, the law looks at the circumstances in which it was created," she said. "If you create a contact list or any sort of document during working hours using your work PC that relates in some way to your job or is of value to your employer they would have a very strong argument that that belongs to them."

The case of Junior Isles and conference and publishing business PennWell Publishing has highlighted the fact that employers can own an employee's digital creations and that that ownership can extend further than some workers may realise.

Isles brought a list of journalistic contacts to his job at PennWell and added to it while working there. When he left to set up a rival company PennWell objected to his taking the contacts list with him.

Isles claimed that the contacts list was his personal information and that only 20 per cent of it was added while he worked for PennWell. He also said that it would breach his human rights to take it from him and deprive him of his right to free journalistic expression.

The Court ruled that the list belonged to PennWell. It said that if he had maintained a separate list of contacts for personal purposes and added selectively to it, he could have kept that. It also said that he could have taken his personal contacts and any that he brought to the firm in the first place with him.

Because Isles had tried to take the whole list, PennWell was allowed to keep the database of contacts and was also granted an injunction preventing Isles from using the database. The company did allow Isles to keep and use the contacts he had brought to the firm, though.

The ruling confirmed the right of an employer to treat as its own property the creations of its employees if they were made in the course of business. That includes digital creations, even if some of that creation is for personal purposes.

Turner said that though a company's internet and email usage policies were important, it was not necessary to state the potential claim in them because the basis of that claim was fixed in the law.

"The basic law is that if you create copyright material, something you write or type into a computer, you take photographs, you do cartoons, you potentially create film, if that is created in the course of your employment then the assumption is that that belongs to your employer, so that doesn't have to be written down by your employer," she said.

Turner said that social networking sites and the material a person creates for them do not exist in a vacuum, that they do interact with working life, but that most users do not realise this.

"They may think that social networking is something which doesn't affect their work relationship, but it certainly does," she said.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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