Updating of LinkedIn Profile deemed as breach of Non-Competition Clause

The City Court of Aarhus has established that two former employees' updating of their personal LinkedIn profiles while being subject to a non-competition clause was a breach of the clause.

The case involved two employees who had given notice of termination in order to take up employment in a competing company. Since both employees were subject to a non-competition clause, they agreed with the new employer that their new employment should not commence until after the expiry of the non-competition clauses.

Before the expiry of the non-competition clause, both employees decided to update their personal LinkedIn profiles to the effect that the new employer was stated as "present em-ployer" - regardless of the fact that they had not yet taken up their positions. The former employer was of the opinion that this updating constituted a breach of the non-competition clauses.

First, the City Court had regard to the fact that personal relations played an important role in the particular trade, especially in connection with a part of the working tasks performed by the employees concerned. Furthermore, the Court attached importance to the fact that the employees had established personal relationships with a number of persons in the trade and that they were connected to these people via LinkedIn.

In connection with the updating of the LinkedIn profiles, an automatic message had been sent to the employees' connections. The City Court found that such targeted communication from the employees to persons with whom they had established a professional relationship in the course of their employment with the former employer was a breach of the non-competition clause. Therefore, the employees were ordered to pay a contract penalty.

For one of the employees, the contract penalty was reduced from DKK 595,452 to DKK 100,000 due to the fact that he had informed on his LinkedIn profile that he did not commence the new employment until after expiry of the non-competition clause and that he had immediately deleted the updating after the former employer's approach in this respect.

The contract penalty for the other employee was reduced from DKK 126,822 to DKK 100,000. In this case, it was an aggravating circumstance that he had communicated an employment date prior to the expiry of the non-competition clause and that his obligations under the non-competition clause had been emphasised to him shortly before the updating. However, also this employee had deleted the updating immediately after the former employer's approach.

According to available information, the judgment has been appealed to the Danish High Court.

The judgment shows that employees' conduct on social media, including premature infor-mation about a new job, may constitute a breach of a non-competition clause and probably also of the general loyalty obligation, especially if the contacts have been built up in the course of their work.