Technology means that now even the most basic of conversations are had over email. Many might think that the sender of the original email would own the email contents, but a recent High Court ruling
Technology means that now even the most basic of conversations are had over email. Many might think that the sender of the original email would own the email contents, but a recent High Court ruling has queried whether the contents of our emails can be "owned" at all.
The case of Fairstar Heavy Transport v Adkins & another [2012] EWHC 2952 (TCC) called into question whether or not Fairstar had an "enforceable proprietary claim to the content of the e-mails" held by Mr Adkins when they were sent or received by Mr Adkins from a personal email account whilst acting on behalf of Fairstar. Essentially, the case is concerned with the relationship of a principal and its agent and whether the content of the emails sent are a form of property, rather than the electronic medium on which the emails would be stored.
The line of argument against there being an enforceable proprietary claim was essentially that the content of an email is merely information and is therefore not property. The court agreed and decided that there is "no practical basis for holding that there should be property in the content of an e-mail". The practicalities associated with attempting to track the owner of the contents of an email and allowing him to assert his rights against the rest of the world was something which the court found to be "very strange – and far reaching". In addition, the court felt that there was adequate protection under English law in relation to email content that may be of a confidential nature.
The finding in this case that information is not "property" impacts not just email communications, but any scenario where one party holds data belonging to another, for example, in the Cloud. Contractual safeguards requiring data to be returned to the customer on demand help to circumvent the lack of ownership question, although the situation becomes more complex if a service provider becomes insolvent. Employers should also be conscious that the disclaimer included in many email footers regarding unauthorised receipt and use (which are indicative of the creator of the email asserting proprietary rights to the contents) may be interpreted in light of this judgment, whereby unless obligations of confidentiality can be relied on, the sender of the email may not be able to rely on the statements made in the email footer.
The case of Fairstar Heavy Transport v Adkins & another [2012] EWHC 2952 (TCC) called into question whether or not Fairstar had an "enforceable proprietary claim to the content of the e-mails" held by Mr Adkins when they were sent or received by Mr Adkins from a personal email account whilst acting on behalf of Fairstar. Essentially, the case is concerned with the relationship of a principal and its agent and whether the content of the emails sent are a form of property, rather than the electronic medium on which the emails would be stored.
The line of argument against there being an enforceable proprietary claim was essentially that the content of an email is merely information and is therefore not property. The court agreed and decided that there is "no practical basis for holding that there should be property in the content of an e-mail". The practicalities associated with attempting to track the owner of the contents of an email and allowing him to assert his rights against the rest of the world was something which the court found to be "very strange – and far reaching". In addition, the court felt that there was adequate protection under English law in relation to email content that may be of a confidential nature.
The finding in this case that information is not "property" impacts not just email communications, but any scenario where one party holds data belonging to another, for example, in the Cloud. Contractual safeguards requiring data to be returned to the customer on demand help to circumvent the lack of ownership question, although the situation becomes more complex if a service provider becomes insolvent. Employers should also be conscious that the disclaimer included in many email footers regarding unauthorised receipt and use (which are indicative of the creator of the email asserting proprietary rights to the contents) may be interpreted in light of this judgment, whereby unless obligations of confidentiality can be relied on, the sender of the email may not be able to rely on the statements made in the email footer.