OfficialWire: Business Leaders: Business Networkers Mourn Ian Hendry, The Man Who Started And Created We Can Do Biz
Ian HendryI met Ian Hendry a month or two ago at a business networking meeting arranged by Business Scene in Datchet, an area on the way to Windsor.
At this event their were a number of different networks presenting their various portfolio, and among them was We Can Do biz with Ian it’s founder and creator standing in.
I remember standing in a group of three, next to Ian who was a genial guy, and subsequently collaboration started.
I later had a look at his networking site and joined, to becoming a full member in the last week.
I heard from Chris Butler his business partner that Ian had contracted meningitis in the UK, and then by email that he had died after a short illness at John Radcliffe Hospital Intensive Care Unit in Oxford.
I was to put it bluntly – gob smacked! I just could not believe it – he was in his late 30s early 40s and hardly the man to die.
Ian had something, an idea that he had spent considerable time on, and he was after all an internet guru.
Looking at his profile, a hologram appears – here is a man, immortalised in the net, an entrepreneur who will never die, a visionary who started something that business owners use to communicate.
Our deepest sympathies are with his family and friends.
I will miss you Ian definitely – goodbye my friend…
CatchFriday.com © Catch Friday Media Limited 2011
A lovely and profound tribute from Lawrence Perry of CatchFriday.com
I can’t add any more really.
Funeral Notice for Ian Hendry, Founder & CEO of WeCanDo.BIZ
Please accept my apologies for this very public forum. We have received so any wonderful messages and memories for Ian that this is really the only way to reach everyone who has asked for details.
Ian’s funeral will take place at:
All Saints Church
Church St
Haslingfield
Cambs
CJ23 1JE (directions here)
at 2pm on Monday 5th September.
The wake is yet to be confirmed but will follow the service in the village. Flowers are welcome however Ian’s family would prefer donations to either The Meningitis Trust or to The John Radcliffe Hospital Intensive Care Unit in Oxford.
This will be a celebration of Ian’s life so please wear some colour. Singing will be compulsory
Thanks to you all for your kind messages during this difficult time, those which have been left on WeCanDo.BIZ can be seen by Signing In and then going to the Network Discussion ‘In Memory of Ian’ we have set up here All of the messages will be passed to Ian’s family.
PLEASE REPLY TO irfh@wecando.biz IF YOU PLAN TO ATTEND – this is important in order for Ian’s family to know numbers.
.
PRESS RELEASE – Oliver Rothschild announced as Chairman of online business network WeCanDo.Biz
Corporate strategist joins to aid growth of UK-based LinkedIn rival
London, UK – 18:00 22 August, 2011: WeCanDo.BIZ Limited, the online business network for sales leads and referrals, has announced that Oliver Rothschild has joined as Chairman to help aid growth of the business.
Oliver brings a valuable and extensive network of connections to WeCanDo.Biz. As former Founder and Principle of Buchler Rothschild Investments, Oliver’s track record of successful business development includes real estate, IT, entertainment, media, PR, fine arts and antiques; as well as consulting in the hotel, restaurant and leisure industries.
As Principle of Oliver Rothschild Corporate Advisors, Oliver’s board level experience is as extensive as his network. In addition to being appointed Chairman of a travel PLC, Senior Vice President of American General Investments and Director of Auction House, Oliver has been elected Chairman or Non-Exec Chairman of a range of companies in the areas of sustainable development, environmental services, corporate governance, media/new media, cloud computing, vocational training, business mentoring, and the third sector.
Oliver said, ‘’I am glad to have the opportunity to propel the social media site, WeCanDo.Biz, in giving a valuable ‘e-voice’ in the B2B and B2C online networking environment. It is vitally important, especially in the current economic climate facing the UK that the needs of the SME market, in particular, are given as much opportunity as possible, to publicise and connect with each other, as well as potential clients and customers.
WeCanDo.Biz, is a dedicated site meeting those requirements, in an extremely immediate, efficient and cost effective manner; I look forward to its members actively exploiting its unique features.’’
“We are delighted to welcome such a well connected, knowledgeable and experienced professional to our board,” says Chris Butler, of WeCanDo.Biz. “In spite of the UK’s entrepreneurial spirit, we as a nation lag behind the US in our use of the Social Web as a business generation tool. With our revitalised board we aim to fill that void and provide an online business network much better focused to the needs of Britain’s 4.5 million small and medium sized companies.”
The WeCanDo.Biz website uses social networking methods to connect customers to suppliers. It is available at www.wecando.biz and is free to use. An enhanced version with more lead discovery options is available to on upgrade to ‘Pro’ level for £60 + VAT for 12 months access (approx. US$120).
About WeCanDo.BIZ
WeCanDo.Biz is an online new business network for sales leads and referrals. Using social networking methods to broker valuable new business relationships, it provides simple tools to members which help generate sales leads, leverage customer referrals and win new business. The web-based service is available to all businesses at www.wecando.biz.
Media contact:
Chris Butler
Chief Operating Officer
twitter.com/wecandobiz
+44 (0)7767 385620
Corporate Blog Update
You may notice a couple of changes this morning.
Firstly, the blog doesn’t look the same and secondly all the articles representing about three years work and a huge amount of comment by external contributors are missing.
The reason for both of these however is the same. On Friday the 19th August at some point, the entire WeCanDo.Biz blog vanished. Lock, stock and barrel. I have contacted Posterous who suggested that ‘somebody deleted it’. Well, I know I didn’t and if you have followed the pretty unpleasant events of last week you will know that the only other person who could have would not exactly have been able to.’
I have recreated a page for us and I will be hammering Posterous to try recover some of the articles. It will take me a while to recreate the look and feel because I have a few other things to do (such as running the business) but we will get there. I will repost some of the articles I have access to so please bear with me if you see repetition. Thank you all for your kind thoughts over the last few days. All of the comments and memories which have been sent to us will be passed to Ian’s family
In Memoriam – Ian Hendry, Founder and CEO of WeCanDo.BIZ
In Memory…..
18 August 2011
It is with the most massive and heartfelt regret that I must announce that our Founder, CEO and my close friend, Ian Hendry passed away yesterday after a short illness.
It is difficult to know how to express my feelings and those of all who knew Ian. We have lost a bright light, a sparkling wit and a huge intelligence.
He will be sadly missed by all who knew him.
I pass my deepest condolences and sympathies to his mother, father and sister.
Should you wish to leave a message or memory, please Sign In and then go to the Network Discussion ‘In Memory of Ian’ we have set up here.
Kind regards
Chris Butler
Chief Operating Officer
In Memoriam – Ian Hendry, Founder and CEO of WeCanDo.BIZ
In Memory…..
18 August 2011
It is with the most massive and heartfelt regret that I must announce that our Founder, CEO and my close friend, Ian Hendry passed away yesterday after a short illness.
It is difficult to know how to express my feelings and those of all who knew Ian. We have lost a bright light, a sparkling wit and a huge intelligence.
He will be sadly missed by all who knew him.
I pass my deepest condolences and sympathies to his mother, father and sister.
Should you wish to leave a message or memory, please Sign In and then go to the Network Discussion ‘In Memory of Ian’ we have set up here.
Kind regards
Chris Butler
Chief Operating Officer
To all our members – A message from our Chaiman regarding the current disturbances
Some of you will have experienced some ugly scenes, and even may have had your businesses or homes affected by the last nights’ riots. I urge all members to support each other and especially those who may have had their livelihoods and/or businesses affected.
Wecando.biz is an effective medium for all its members to assist and trade with one another, especially now, in these trying times for some. it also demonstrates how social media can be used to good effect and not be misused as the cause of negative aspects which have been attributed to some sites on the blogosphere. I wish you all a positive biz day and many more to come in the future.
Oliver Rothschild
Chairman Wecando.biz
To all our members – A message from our Chaiman regarding the current disturbances
Some of you will have experienced some ugly scenes, and even may have had your businesses or homes affected by the last nights’ riots. I urge all members to support each other and especially those who may have had their livelihoods and/or businesses affected.
Wecando.biz is an effective medium for all its members to assist and trade with one another, especially now, in these trying times for some. it also demonstrates how social media can be used to good effect and not be misused as the cause of negative aspects which have been attributed to some sites on the blogosphere. I wish you all a positive biz day and many more to come in the future.
Oliver Rothschild
Chairman Wecando.biz
Guest Blog — Social media marketing and business promotion #socmed #scrm #business #networking
For the past couple of years Business Scene has worked in partnership with Chris Butler and Ian Hendry from WeCanDo.Biz. These guys have been breaking new ground with their site and I have always been impressed with how knowledgable they are.
Chris has kindly written this post to explain what social CRM actually is in layman’s terms. Its a good read and I recommend you visit WeCanDo.Biz
Let us know what you think – Warren
If you have spent any time on the business and techy pages on the web or have read our own corporate blog, are a member of WeCanDo.BIZ or gazed at some of the more arcane Twitter hashtags you will see mention of Social CRM.
If you already know what it is, that’s great….please let me know!
Needless to say, every so often an acronym comes along that seems to catch the zeitgeist…and this year’s flavour of the ghost seems to be Social CRM. I hate the term but it is very much ‘out there’ and Gartner seems to think there will be $11bn in revenue in it this year so I won’t ignore it. Especially as it is very much part of what we do.
Ok, so three paragraphs in and I’ve told you nothing at all. Well, I could point you at a pile of pseudo-techno-babble which is readily available on the web which will tell you it is about processes and flow-diagrams and goal-setting and preparing your business.
Or I could simplify it.
Social CRM is about using the tried and tested CRM principles you all know and love and introducing stuff from the social web.
Still with me? Well if you are not, then don’t be surprised. We get asked so often what CRM is that it has long since ceased to surprise me or anyone at WeCanDo.BIZ Towers. It is Customer Relationship Management – the bit of your sales systems or customer support areas where you keep all those fiddly bits of information about people and how you interacted with them. Think Act! or Goldmine or Microsoft Dynamics (or indeed our own wonderful WeCanDoCRM).
Now, many small business owners don’t use CRM. Shame on you. There really is no excuse. When I work with small businesses it is one of the first things I get them to do. It brings order to the chaos of business cards, post-its and bits of paper…and those ‘Oh bugger, Ron knew the contact…but he left’ moments we’ve all had. Without some means of organising all those contacts and leads you (and me especially) will get in one hell of a mess.
Soooo….the social bit. I hope you are aware of all the wonderful social tools available out there to help you do business on the web. Twitter, Facebook, LinkedIn, WeCanDo.BIZ and the list goes on and on. Many of the people you do business with are out there on the web doing ‘stuff’. They will have profiles on networking sites. They will Tweet about stuff they like and don’t like. They might be talking about you right now. How do you know they are not? They might even be asking for the things they have previously bought from you or don’t know you sell. Then there are all those people out there who don’t know you and don’t know what you do. See where I am going with all this?
There are some excellent tools out there to help you capture, monitor, analyse and use all of this ‘stuff’. Social CRM is about bringing the social stuff you don’t know into the business stuff you do know.
There are tools for monitoring what is being said, like Radian 6; tools for organising communities like Lithium; tools for integrating CRM, ERP (Enterprise Resource Planning (or making sure stuff and people are where they should be)) and social information like Microsoft Dynamics CRM. Be aware though that these are pricy tools for big corporations in general. This is not supposed to be an advert so I won’t tell you that there are also tools for getting real sales leads from the social web and straight into a CRM system like WeCanDo.BIZ. There are even tools for doing sentiment analysis on demographic groupings against products and ideas or using historical data from the web to do predictive analysis of things that might happen. Scary!
So, should you care about Social CRM? Well, unless you are someone ‘in the industry’, probably not. But you should care about what it can do for you whatever it ends up being called. Information you can’t do without is out there on the web. People are talking about either what you do or you or your competition whether you like it or not or know about it or not. You can’t afford to ignore it. If you do, you can guarantee someone else won’t.
All you have to lose…is business.
Chris Butler is Chief Operating Officer of WeCanDo.BIZ, a speaker and blogger on all things Social and CRM. He has wide experience of working as a consultant to the UK public sector as well as helping many small and medium businesses to grow. He is also a singer/songwriter … you can hear him here 0000ee;”>http://www.reverbnation.com/chrisbutler
My guest blog for Warren Cass from Business Scene. Warren has some excellent content on his blog at www.warrencass.com and I recommend you check it out and I welcome your comments.
Is Social Networking Disclosing Your Trade Secret Customer Lists? #scrm #socmed #social
It was inevitable. First came social networks, then came the lawsuits: In the e-discovery context, in impeachment situations (Ledbetter v Wal-Mart Stores Inc.(06-cv-01958-WYD-MJW) (D Colo April 21, 2009); Mackelprang v. Fidelity Nat’l Title Agency of Nevada, Inc. (D. Nev. 2007); and Beye v. Horizon Blue Cross Blue Shield (D. N.J. 2006)), in the tort context (Wolfe v. Fayetteville, Arkansas School, 600 F.Supp.2d 1011 (W.D. Arkansas 2009)), as to how much privacy settings matter, on passwords and access, and this list represents merely the proverbial tip of the issues iceberg.
One issue still bobbing below the surface, as it appears there are no fully tried cases on the matter as of this writing, is disclosure of trade secrets, such as a client/customer list, through use of social media and social networking.
The Uniform Trade Secrets Act (“UTSA”) has served as a model for the enacted Trade Secret Acts of 46 states and the District of Columbia. Massachusetts, New Jersey, New York, and Texas have not enacted a UTSA-model act – although the legislatures of Massachusetts, New York and New Jersey each introduced UTSA-based legislation in 2010. Under the UTSA a “trade secret” is defined as:
“information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (emphasis added).
See also Trade Secrets: A State-by-State Survey, Third Ed., with 2010 Cumulative Supplement; 18 U.S.C. 1839 (defining trade secrets for purposes of the Economic Espionage Act of 1996, which makes theft or misappropriation of a trade secret to benefit a foreign power or related to a product that is placed in interstate or foreign commerce a federal crime).
Various states expressly include a “customer list” in their UTSA’s definition of “trade secret.” (See Network Telecomms v. Boor-Crepeau, 790 P.2d 901, 902 (Co. 2010) (noting a trade secret under Colorado’s UTSA, Colo.Rev.Stat. Ann. § 7-74-102(4), includes the listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value); Industrial Insulation Group, LLC v. Sproule, 613 F. Supp.2d 844 (SD Texas 2009) (referencing Pennsylvania’s USTA, 12 Pa. Cons. Stat. Ann. 5301 et seq., which includes customer lists)).
However, even if a state’s UTSA does not expressly include customer lists in a provided definition such “low tech trade secrets” are routinely held by courts to fall within trade secret protection, under either UTSA-based or pre-UTSA common law as detailed by the Restatement (Second) of Torts §757. Section 757, Cmt. B specifies that “a trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” A customer list readily qualifies under this definition.
Regardless of whether the applicable source of a trade secret’s protection is state statutory or common law, key issues as to whether a party may successfully claim protection for a trade secret depend on a threshold fulfillment of requirements, among others, that the materials do in fact qualify as actual trade secrets because they hold independent economic value, since they’re not widely known outside the entity, and that the owning party has taken reasonable measures to safeguard the materials’ secrecy.
In the realm of customer lists courts commonly hold lists that are readily ascertainable are offered no trade secret protection. See, Dowell v. Biosense Webster, Inc., 179 Cal.App.4th 564, 571 (2009) (affirming lower court’s holding “that there was no evidence that Biosense’s customer list is a trade secret because it appears that the customers for the products at issue … are easily identified from any number of publicly available directories and resources”); Ken J. Pezrow Corp. v. Seifert, 197 AD2d 856, 857 (N.Y. App. Div. 4th Dept 1993)(“where an employer’s customer lists are readily ascertainable from sources outside its business, trade secret protection will not attach and their solicitation by the employee will not be enjoined.’”) (citations omitted). In fact, New York courts have applied a “general rule” that an employee may solicit an employer’s customers when the employment relationship has been terminated, in the absence of some other contractual agreement to the contrary. A & L Scientific Corp. v. Latmore et al., 696 N.Y.S.2d 495 (2d Dept 1999) (citing Catalogue Service of Westchester, Inc. v. Paul Wise et al., 405 N.Y.S.2d 723 (1st Dept 1978)).
Adding Social Networking To The Mix
Since the disclosure of an otherwise trade secret – even accidentally or “through inadvertence” – destroys the secrecy element and therefore removes what trade secret protection exists, Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 476 (1974), at what point can using social networking to link-in, friend or make other connections with customers cross over into making a customer list, or a portion of a list, no longer protectable as a trade secret? With seemingly everyone, including us here at the Info Law Group, connecting to business associates as well as potential and actual clients, the question is not academic.
Indeed, witness a case filed earlier in the year, which is indicative of the issue. TEKsystems, Inc., a Hanover, Md-based recruiter of technical professionals, filed a federal action on March 16, 2010, TEKsystems, Inc. v. Hammerinick et al. (0:10-cv-00819-PJS-SRN), Complaint here, accusing former employees of wrongfully contacting former co-workers and clients in violation of the non-compete and non-solicitation agreements they entered into and for misappropriation of trade secrets. Docket available here. On the facts given above the case seems merely a run-of-the-mill action against former employees violating commonly used non-compete and non-solicitation prohibitions. But the topical kicker is that contacts by one of the former employees allegedly occurred through LinkedIn and that Teksystems claimed that the customers, described in the Complaint, as “key individuals responsible for recruitment [at outside entities] of professional placement staffing needs” were “valuable, confidential, and proprietary to TEKsystems, and [] not generally known in the public domain” with “significant economic value to TEKsystems” – in short a trade secret under Maryland’s Uniform Trade Secret Act, Md. Code Ann., Com. Law §11-1201(e).
The applicable non-compete clause prohibited the former employee for a period of 18 months after leaving from working for “any business that is engaging in or preparing to engage in any aspect of TEKsystems’ Business in which EMPLOYEE performed work during the two (2) year period preceding his/her termination of employment, within a radius of fifty (50) miles of the office in which EMPLOYEE worked at the time EMPLOYEE’s employment terminated.” The applicable non-solicitation clause provided that during the 18 month period after termination the employee would not “[a]pproach, contact, solicit or induce any individual, corporation or other entity which is a client or customer of TEKsystems, about which EMPLOYEE obtained knowledge by reason of EMPLOYEE’s employment ….”
While clearly onerous from the employee’s perspective, the Court never reached the merits or opined on validity of the provisions given the case’s disposition by stipulated Confidential Settlement Agreement. However, social networking in the form of LinkedIn entered the Complaint at Paragraph 37 where TEKsystems, in providing examples of one of the employee’s conduct, recounts the employee “has communicated with at least 20 of TEKsystems’ Contract Employees using such electronic networking systems as ‘Linkedin.’” In Paragraph 40, the Complaint alleged the employee “[p]rior to leaving TEKsystems, [] sent emails to a number of candidates advising them that she was leaving TEKsystems and joining Horizontal Integration.”
As an aside, the stipulation recognizes the new cloud storage landscape we’re operating in by defining “Computers,” in a laundry list of systems and storage the defendants would be required to search for documents to return to TEKsystems and then destroy, as “all servers, hard drives, ‘cloud’ storage systems, jump drives, zip drives, CBIZ or other electronic storage devices.” It also defines “Documents” as “the broadest meaning ascribed to it under the Federal Rules of Civil Procedure, and shall include documents in paper form, electronic form, on ‘cloud’ systems or otherwise maintained in any way by Defendants.”
Although the TEKsystems case concluded last week on Oct 18, 2010, per previously stipulated Permanent Injunction and Dismissal or Action, here, the case itself raises interesting broader questions:
- At what point does use of a social network, particularly in an industry where direct outside client contact is first and foremost, divulge a trade secret client/customer list by crossing the line between those contacts made during and as a direct result of one’s employment for a specific company (and as a result considered a “trade secret”) and those contacts made “off-hours” by virtue of a person’s being part of a given industry and, perhaps, say “Linking In” to contacts of contacts? LinkedIn’s entire business model is built around a “six degrees of separation” concept, but how many degrees away does an employee need to get before those “contacts of contacts” are no longer part and parcel of the employer’s existing or potential client/customer list?
- Given that social networks generally have “public” and “private” settings capabilities, could connecting to customers and clients act to inadvertently toss the employer’s otherwise validly confidential and trade secret customer list into the public domain, destroying trade secret protection in the process by virtue of the fact that those outside the employee’s company conceivably can then “readily ascertain by proper means” the employer’s list of customer/clients using the employee’s socially networked contacts? Consider that according to the Restatement (Second) of Torts §757, factors courts will consider “in determining whether given information is one’s trade secret” include:
• the extent to which the information is known outside of the business;
• the extent to which it is known by employees and others involved in the business;
• the extent of measures taken to guard the secrecy of the information;
• the value of the information to the employee/employer and competitors;
• the amount of effort or money expended in developing the information;
• the ease or difficulty with which the information could be properly acquired or duplicated by others.So what can and should you do to address the social networking disclosure issue before a court potentially does it for you?
Recommendations
First, let’s recall that the Complaint in TEKsystems contained four counts, which are fairly typical in an action of this type: 1) breach of contract; 2) breach of confidentiality agreement (“NDA”); 3) tortious interference with contractual relations, and 4) misappropriation of trade secrets. NDA’s frequently utilize broad definitions of “confidential information” and TEKsystem’s NDA definition included “information not generally known by TEKsystems’ competitors or the general public concerning TEKsystems and that TEKsystems take reasonable measures to keep secret, including but not limited to … customers’ names, addresses, telephone numbers, contact persons … and the names, addresses, telephones numbers, skill sets, availability and wage rates of … personnel.”
Had the NDA lacked such a definition or express inclusion of customer names and TEKsystems were forced to rely merely on a claim of misappropriation of trade secrets as a result, the issue of whether customer/client lists entered the public domain via social networking would have garnered notable prominence as the employee might have argued, depending on the factual specifics: “What trade secrets? The information was publicly available via my LinkedIn profile.”
The lesson? Ensure that your employee NDA’s include client information (identities, names, addresses, etc.) within the definition of “confidential information.” But merely defining information as confidential is not be enough unless steps are taken to in fact treat the data as confidential – since as with trade secrets “confidential information” obviously ceases to become such when it enters the public domain. See generally, 1-800 Postcards, Inc. v. Ad Die Cutting & Finishing Inc., 2010 NY Slip Op 51368 (NY Cty Sup Ct July 9, 2010) (denying plaintiff’s claim of misappropriation of trade secrets where there is no employee “contract expressly restricting the former employees from competing with the prior employer.”)
Second, add a social media section to non-compete clauses and NDAs that clearly addresses use of social media and its effects on any materials considered trade secrets and confidential information. Specifically you should consider, beyond the usual items that e-mail and internet access may be monitored, etc., language providing that :
• Employees should use employer supplied computers, networks and equipment (i.e., smartphones, etc.) for business purposes only, while acknowledging the reality of working from home using home computers and systems with additional language that provides even usage of such home systems must comply with the NDA and non-compete clauses;
• Employees must disclose use of social networking sites; that such social networking may be monitored by the employer, and that consent is granted by the employee for the employer to access employee social networking sites for compliance with the employee’s contractual obligations. You may, under certain circumstance, wish to have the ability to direct an employee (or former employee) to remove any linkage to your company site or mention of the company or employment with the company; and
• Employees may be directed to select privacy settings to prevent “public” users from browsing or seeing their contacts.Finally, the landscape of social networking is changing rapidly. It’s extremely important to carefully periodically review the various use, privacy, copyright and other policies social networking sites require acceptance of to ensure that your employees aren’t binding you to provisions you were unaware of, that may not be practical to comply with given your specific industry or usage, or that may result in disclosure of confidential or trade secret information by default.
As always, to discuss any of the above or your specific needs and issues, feel free to contact me or any other attorney at the Info Law Group.
No apologies but this one is going to be a bit heavy. US law seems mired in much abstruse law and definition. The whole concept of ‘information’ per se being corporate intellectual property is however somewhat alien to British Law. And being a British company, more particularly a company governed by the Law of England and Wales I thought I had to comment on an are which is going to become more and more important for ‘social’ providers and customers as time passes.
In the UK, the right to confidentiality of information arises from Commercially, the only way to preserve whatever value information has, is most cases to stipulate that confidentiality by contract.
There are some caveats and concerns relating to know-how and exploitation of reverse-engineered stuff but I will not be discussing those in this article.
Information is not considered property in the legal sense in the UK, as is the case in the United States; a point amply made in the Info Law Group article above. Information and the form of that infirmation must be considered separately. The duty of confidense relating to information disregards its from, meaning that it doesn’t matter how that information is stored….following me?
Duty of confidence is an equitable principle meaning essentially that you shouldn’t do stuff with information which is broadly against the spirit in which you were given that information. As such, non-consensual use of that information may lead to litigation. The joys of civil law!
Mr Justice Megarry in Coco v Clark, stated ‘First, the information itself must have the necessary quality of confidence about it. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must be unauthorised use of the information to the detriment of the party communicating it. The information should be clearly identifiable and original.’
so…if you have ‘good information’ obtained via proper means and you have been told that information has a degree of confidence pertaining to it, if you do something which can be shown to be detrimental to the party you got the information from…beware!
Types of information may include:
- Customer lists;
- Personal informatio;
- Sales plans and records;
- Strategy;
- Commercial plans;
- Marketing plans;
- Personal informatio.
Justice Megarry also stated that to decide whether information has been received with an obligation to keep it confidential, an reasonableness test must be applied;
‘If the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then it should suffice to impose upon him the equitable obligation of confidence’
Information falling into the hands of employees is not considered confidential information when the information is of a character that the employee would fairly be entitled to use when they leave. Hmm, now there is an interesting point. Who then, becomes the arbiter of what is fair and what is not? Clearly if that information is protected by a contract confirming confidentiality then the employee into whose hands the information falls may be on very sticky ground should they then use that information. It is also fair to say the in the UK, the Data Protection Act (DPA) 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 cover an awful lot more than case and contract law with regard to the use of personal data…and this is where it gets interesting for the likes of us!
The DPA has 8 broad principles which are absolutely straightforward in nature and in application ( I have chopped a couple of references to other parts of the Act otherwise this post will be huge);
- Personal data shall be processed fairly and lawfully
- Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
- Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
- Personal data shall be accurate and, where necessary, kept up to date.
- Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
- Personal data shall be processed in accordance with the rights of data subjects under this Act.
- Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
- Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
An important question that recipients of information must ask, ‘If I did not already know this information, how would I get it?’
In the instance of social networks, it is reasonable to presume that simply ‘holding’ data on our systems does not grant us any form of ownership or rights to that data other than those granted to us by our members when they sign up. And we have absolutely no rights whatsoever to data or information stored by our members relating to their contacts whether in a simple contact list or in a CRM element of our (or your, or anybody else’s) system.
For employers, the situation becomes tricky. If your employee uses our system, or LinkedIn or any other network to store data whilst working with you, then leaves and takes that data with them, what happens? Given the nature of social systems, is it reasonable to suggest that the information they have is ‘personal’ to them? Is it different to taking a CD with a copy of your corporate email or CRM database? I think that the key here may be the word ‘personal’; if the employee has genuinely created a relationship with a person or company such that the third party has been happy to connect with the employee ‘outside’ of the work environment; then a reasonable conclusion may well be that the information has transcended the commercial relationship.
Given the nature of the difference in laws (and don’t forget that we have only covered two sets of laws here) this subject is going to grow and grow and there will be no simple answers for those who work across borders.
I would love to see some healthy debate on this one, particularly from the legal community and I say that largely because this is an area where lay opinion of what ‘should’ happen is largely irrelevant. The law has no space for emotion 
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