The recent news last week that WhatsApp had become vulnerable to a surveillance spyware, despite marketing itself as a secure communications app with end-to-end encryption, comes hot on the heels of a recent Court of Appeal judgment in the case of Forse & ors v Secarma Ltd & ors, which highlights how WhatsApp messages can provide vital evidence in team move cases.
We all know how popular WhatsApp has become: various surveys suggest it is the UK’s most popular smartphone app. It is therefore unsurprising that employees involved in team moves often discuss their plans using WhatsApp. However, the risk of subsequent disclosure of such material in legal proceedings means their chats may come back to haunt them.
Forse v Secarma
Forse v Secarma involved a large group of defendants who were alleged to be liable for conspiracy to injure by unlawful means in connection with a team move between competitor cybersecurity companies. By the time the claim was issued, there had been 28 resignations (almost half the workforce) from Secarma, including the co-founders and a former MD, with most joining its competitor, Xcina. The employees involved were specialist ‘pen testers’ (whose work involves deliberately trying to hack clients’ IT systems). Suitably skilled pen testers are apparently in short supply.
An injunction was obtained by Secarma (known as a ‘springboard injunction’) prohibiting a range of activities by Xcina pending the start of trial, including enticing away any further employees, the provision of pen testing services by the relevant employees, and any solicitation or dealing with clients of the previous employer. Also Xcina was prohibited from carrying on any pen testing business in competition with Secarma.
The Court of Appeal found that the original judge had been correct to grant an injunction preventing Xcina from carrying on pen testing in-house, but varied the injunction to allow Xcina to continue outsourcing such business, as previously.
The main evidence in support of the springboard injunction application came from WhatsApp messages. The court found the messages showed that the MD of Secarma (while on garden leave) worked closely with a former colleague (who had already moved to the new employer) in planning a team move of 21 employees in four stages. There was a group chat named ‘Order of the Phoenix’ and pseudonyms were used (with the MD called ‘Vlad’ and participants told to make sure he was in their contacts only under that name). The overall plan was disguised as a bowling championship (the Hammer’s Bowling Championship). In an amusing twist, the group chat included discussion (among professional hackers) of how to close it down and delete its contents given potential ‘legal consequences due to the non-poaching clauses’.
Lessons for employers
In springboard injunction cases, the injunction effectively hands the claimant a substantive remedy, by restraining the defendant’s freedom to carry on business or deploy their skills. It may also preclude the defendant from honouring contractual commitments to clients. For those reasons, the court must take into account the strength of each side’s case and undertake a fair and reasonable evaluation of the prospect of the claimant succeeding at trial when considering springboard injunction applications. In addition, consideration will be given to the length of time that the unfair competitive advantage from the relevant wrongdoing at issue will continue.
Forse v Secarma demonstrates, in addition, that WhatsApp messages can provide ample evidence of strong prospects of success at trial. This evidence was key to Secarma’s success at the interim injunction stage. The case serves as a very useful reminder that all electronic data, including from social media and instant messaging platforms, is potentially subject to disclosure in legal proceedings.
Andreas White is an employment partner at Kingsley Napley LLP