The answer depends on what actually is email.
Most of us now send and receive emails every day but how do you define email? The simplest definition I have seen is in the Free Online Dictionary:
“A system for sending and receiving messages electronically over a computer network, as between personal computers/a message or messages sent or received by such a system.”
But is email property in the legal sense? This is what the High Court had to decide in the recent case of Fairstar Heavy Transport NV v Philip Jeffrey Adkins and Claranet Limited.
I am grateful to my colleague, Millwright, for pointing me to the judgement and to the helpful commentary in a article entitled Beware – emails are not property in CMS Cameron McKenna’s Law-Now newsletter of 26th November, 2012.
Stuart Hohnen writes as follows (I reproduce his complete piece):
“The recent High Court case of Fairstar Heavy Transport NV v Adkins and another reaffirmed the generally accepted position of the English courts that proprietary rights do not exist in information, and applied this principle to emails. An employer will not, therefore, have a proprietary claim over the content of the emails of its employees and consultants.
How does it affect you?
The case is a reminder that:
- Contractual agreements, such as employment contracts and consultancy agreements, may need to include obligations about the use and retention of emails and the return of emails upon request by the employer or at the end of the term of the contract.
- Emails sent and received by employees or consultants should be stored and backed up on the employer’s system. Particular care should be taken where emails are sent by an employee or consultant from their personal computer.
Background
Mr Adkins performed services for Fairstar as Chief Executive Officer. Fairstar was taken over by another company and Mr Adkins’ service arrangements were terminated. The point at issue was whether Fairstar could obtain emails that Mr Adkins possessed relating to certain business dealings of Fairstar prior to the change of ownership and, in particular, a $37 million cancellation charge under a ship building contract.
Decision
The judge noted that the existing authorities strongly suggested that no proprietary rights exist in information, citing a House of Lords case from 1967. That case held that information is not property, and is normally open to all who have access to it unless it has been acquired in circumstances where it would be a breach of confidence to disclose it. In those circumstances, equity can restrain a recipient from communicating the information to a third party.
- The judge in Fairstar rejected the view that the circumstances of the modern world now dictate that the content of an email is a form of property. He considered that the range of possible ways in which ownership could attach to the content of an email presented highly impractical consequences. For example, if ownership were deemed to stay with the sender, the sender would have the right at any time after sending the email to require its return or deletion. The judge said that sufficient protection against misuse of emails could be found in copyright law and equitable restrictions on the disclosure of confidential information, and in contract law.”
(Ends)
My reaction to this is that there is clearly more to email than meets the eye. Look no further than the “How does it affect you?” section above to see how the decision affects an employer. Litigators and clients alike need to be aware that while email is not a form of property it is still important to know who has the right to call for emails to be disclosed when the time comes. The article makes it clear that emails sent and received by employees and consultants need to be backed up and stored on the company system particularly where they are sent from an individual’s personal computer. Further employment contracts, for example, need to reflect this reality and should contain obligations about the use and retention of emails and delivery up at the end of the contract term.