Can Ex-Employers Control What You Say On Social Media?

While social media was once just a way to connect with friends and relatives, over time it has evolved to include capabilities used by professionals and employees for business purposes. Since its launch in 2003, LinkedIn has grown into the leading professional networking site for job seekers and recruiters.

For employers, these professional uses have led to special clauses in employment agreements, and guidelines on how social media can be used both in and out of the office.

From a legal standpoint, Australian courts are still setting parameters for how much of our online activity falls under individual freedom, and when it becomes serious enough to breach obligations owed to a former employer. What has been established is that the following factors will influence the court’s decision:

1. The employment agreement
2. Workplace policies
3. How and why the social media account was created

What online activity do Australian courts frown upon?

Australian courts have acted against ex-employees who actively pursue the clients of their former employer. In one case, an employee told his employer before starting work that he carried on his own side business in the same industry. He later sent an email to his LinkedIn connections to solicit work for himself. The court found this was a breach of his obligations to his employer.

In Planet Fitness Pty Ltd v Brooke Dunlop & Ors [2012] NSWSC 1425, a personal trainer’s contract prevented her from soliciting the gym’s clients. After leaving, she contacted former clients and advertised discounted rates on Facebook to people she had trained. The court found a strong case that she had solicited former clients and ordered the posts to be removed.

However, the matter becomes more complicated with features such as LinkedIn’s automatic notifications. When an ex-employee updates their LinkedIn profile after moving to a new employer, their network can be notified, including former clients.

To protect against client poaching, employers often include restraint of trade clauses in employment agreements, such as non-compete and non-solicitation clauses. Whether an automatic notification that a person does not actively trigger breaches those obligations comes down to whether it amounts to “solicitation”.

What is solicitation?

Australia’s case law in this area is still developing, and at times it can appear confusing. Two NSW decisions help show when solicitation occurs:

• In Barrett v Ecco Personnel Pty Ltd [1998] NSWSC 545, the former client made the first approach, but the ex-employee was still found to be soliciting because the client had not yet made a conclusive decision and the ex-employee’s conduct encouraged the move.
• In Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449, contact with a former client was found not to be solicitation.

How can this be? The difference is that in the second case, the client had independently made up their mind to stop using the former employer’s services before making contact. In the first case, the client had not yet decided to leave, and the ex-employee played a role in persuading them to do so.

What can employers do to protect themselves?

If an employer is concerned about losing clients to a former employee, such as where the employee has a particularly strong bond with a particular client, they may consider using a non-solicitation clause. Courts have recognised that a business has a legitimate interest in protecting the goodwill of its client relationships through a reasonable non-solicitation clause.

Employers can also consider who controls social media accounts and contacts. In the UK, courts have treated LinkedIn contacts as an employer’s confidential information where they were taken from the employer’s client database, and have granted an injunction over LinkedIn groups an employee ran for the employer’s business.

Australian courts have not settled this question, so a clear social media policy could be the safest approach.

How will the 2027 non-compete ban affect restraints?

On 7 September 2026, the Federal Government released an exposure draft of the Competition and Fair Work Legislation Amendment (Banning Unfair Non-Competes) Bill 2026. Consultation closed on 2 October 2026, and the laws are intended to start in 2027. They are not yet law.

If passed in its current form, the Bill would:

• ban non-compete clauses for employees earning at or below the high income threshold ($190,100 from 1 July 2026), and for all casual employees;
• ban clauses that stop departing employees recruiting former co-workers, for all employees regardless of income;
• allow other post-employment restraints, including client non-solicitation clauses, only where needed to protect confidential information or client relationships, and only where reasonable;
• make cascading restraint clauses (multiple fallback periods or areas) unenforceable;
• expose employers to civil penalties for including, or threatening to enforce, a banned clause.

Existing contracts would generally continue to apply unless they are varied after the laws start. For most employees, a well-drafted client non-solicitation clause is likely to become an employer’s main protection.

What should you include in a non-solicitation clause?

A non-solicitation clause must be drafted extremely carefully to ensure that the conduct an employer wants to prevent is properly restricted, and that what it is protecting is a legitimate business interest. It is not enough to simply include the word “solicit” and expect to be protected from losing clients.

It is best to restrict an ex-employee using words that prevent them from seeking, enticing, luring, attracting, or in any way dealing with clients. It is also helpful to state specifically what actions are forbidden, such as requiring an ex-employee to turn off their automatic LinkedIn job update notifications. Under the proposed 2027 laws, the clause should also use a single reasonable duration and area rather than cascading options, and should not restrict recruiting former co-workers.

Get advice

If you are concerned about protecting your client base from ex-employees, or you are an ex-employee who has been treated unfairly, you should seek legal advice. Ramsden Lawyers are experts in all aspects of employment law and regularly assist our corporate and commercial clients with non-compete and non-solicitation clauses. Contact us to discuss your situation.

This article is general information only and is not legal advice.