Who owns an e-mail? This was the question facing the High Court recently when an employer challenged a former employee to handover e-mails exchanged in the course of his duties. The answer has led business to take steps to tighten up internal processes to protect the content of business emails – or face the consequences.
The High Court’s judgement in Fairstar Heavy Transport NV v Adkins and another backed up earlier rulings in saying no one can claim the content of e-mails because property rights do not exist in information. This position is one no company using e-mail can afford to ignore.
From a legal perspective, this judgement means that any contractual agreements, such as employment contracts, consultancy agreements or business contracts should include obligations about the use and retention of e-mails. It should also cover for the return of e-mails and protect against the distribution of confidential information.
The Fairstar case arose when the company was taken over and the employment of Mr Adkins, the managing director was terminated. The new owners tried to obtain e-mails held by Mr Adkins related to business transactions before the takeover and a £37 million cancellation charge under a ship building contract in particular. When Mr Adkins refused to hand the e-mails over, the company went to court, claiming in today’s business environment, an e-mail is a form of property.
The judge rejected this view, reinforcing previous rulings which suggested no property rights exist in information and citing a House of Lords case from 1967 which held that information is not property that can be controlled, except where disclosure to a third party would be a breach of confidence.
The rejection of this case can seem strange to the average layman, but as the judge pointed out, if an e-mail were to be considered property, it could have impractical consequences. If an e-mail was considered property, would this make the sender the owner and therefore have the right to demand it back or for it to be deleted, for example?
The judge said there was already protection against misuse through copyright, reasonable restrictions on the use of confidential information and through contract law. This is a stark reminder if any were needed for business to tighten up their operations when it comes to e-mail.
We are all sometimes guilty of making use of modern tools like e-mail without a thought to the consequences. Operationally, companies need to ensure e-mails are regularly archived, with daily backing up, ideally off-site. It is also best to avoid e-mails being sent from personal accounts. If this does happen, or if external consultants are involved, there needs to be a way to capture and archive those e-mail exchanges as well. The Courts are clearly not going to let business treat the contents of e-mails as their property any time soon.