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Content of emails should generally not be considered as property, rules High Court

Businesses do not have a general claim of ownership over the content in staff emails, a High Court judge has said.08 Nov 2012

Business cannot be said to have an "enforceable proprietary claim" to the contents of emails held by staff unless the content can be considered to be confidential information belonging to a business; unless copyright subsists in the content that belongs to a business, or unless that business has a contractual right of ownership over the content, Mr Justice Edwards-Stuart ruled.

"I can find no practical basis for holding that there should be property in the content of an email, even if I thought that it was otherwise open to me to do so," the judge said in a recent ruling. "To the extent that people require protection against the misuse of information contained in emails, in my judgment satisfactory protection is provided under English law either by the equitable jurisdiction to which I have referred in relation to confidential information (or by contract, where there is one) or, where applicable, the law of copyright. There are no compelling practical reasons that support the existence of a proprietary right - indeed, practical considerations militate against it."

Mr Justice Edwards-Stuart came to the conclusion that it was "quite impractical and unrealistic" to determine that ownership of the content of emails either belongs exclusively to the creator or the recipient of an email.

The judge also said that there was "no compelling need or logic" in finding that the recipient of an email is said to be licensed to use the content of an email by the email creator who would be said to be the owner of the content. He said that such a view would deprive the content of emails of "any value". Mr Justice Edwards-Stuart came to the same conclusions in a theoretical finding that the recipient of an email owned its content but that the sender was licensed to "retain the content and to use it for any legitimate purpose".

"In practice, the right to control another's use of the content of an email would depend on the extent to which that other person was or was not making a legitimate use of it," the judge said. "This would amount to applying much the same test as that which applies under the existing equitable jurisdiction (or contractual right if it exists) to restrain the misuse of confidential information. The only difference, I suppose, is that it would not be necessary to show that the information (ie. the content of the email) was confidential in order to exercise a proprietary right of control."

"However, if the information was not confidential, then the situations would be few in which a person would need or want to restrain another's use of it. In my judgment, there is no compelling need or logic for adopting either of [licensing] options) and so in relation to these options I would reject a plea that the law is out of line with the state of technology in the 21st century," he said.

Adopting a view that both the sender and recipients of emails can claim to own the content of those emails was also an approach that was dismissed as "unrealistic" by Mr Justice Edwards-Stuart. Taking that view could have "all sorts of repercussions," he said.

"For example, suppose that a supplier of components loses his database of emails when his server unexpectedly crashes," the judge said. "If he had a proprietary right in the content of all emails sent to and received by him from each of his customers, would he have the right to demand access to the copies of those emails on those customers' servers in order to enable him to reconstitute his database?"

"In a different situation would parties who had formerly communicated with each other on a regular basis by email but had since fallen out have the right to demand access to each other's servers in order to see to whom emails that they had sent had been forwarded?," he said.

"If the answer to questions such as these is No, then I have difficulty in seeing what advantage there might be if it were to be held that there was a shared proprietary right in the content of emails: it would be of little or no value. But if the answer was Yes, the ramifications would be considerable and, I would have thought, by no means beneficial," he added.

Mr Justice Edwards-Stuart was ruling in a case involving a shipping company, Fairstar Heavy Transport, and its former chief executive, Philip Adkins.

Fairstar had won a court order preventing Adkins from deleting certain emails that had been forwarded to him from the company's servers. Although Adkins had been tasked with working for Fairstar he was actually under contract to do so by a separate company, Cadenza Management. Adkins lost his job as chief executive when Fairstar was bought over by a rival company.

While employed by Fairstar Adkins had agreed a shipbuilding contract with a Chinese shipyard. A dispute has arisen as to the potential cost liabilities Fairstar faced under the terms of the contract.

However, Fairstar has claimed that it in order to get to the bottom of the issue, and also in order to respond to an investigation into alleged accounting irregularities being undertaken by the Oslo stock exchange, it needed to have access to the contents of Adkins' emails. It claimed that it automatically deleted the emails that it forwarded through its servers to Adkins' Cadenza account when he worked as chief executive.

However, Mr Justice Edwards-Stuart ruled that the company had no right over the ownership of the email content and therefore rejected Fairstar's request for an independent inspection of Adkins' emails to take place. The judge said that there was nothing set out in case law in England and Wales that provides that there is a general proprietary right in the content of information.

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