The High Court has recently confirmed the legal principle that there is no property in the content of an email.
Background
This wasn't an IP case as such. The Claimant shipping company was being investigated by the Oslo stock exchange and, in order to put its best case forward, the Claimant wanted to inspect emails of its former Chief Executive. Because of a jurisdiction clause, the Claimant's request to inspect the emails was reliant on it owning the contents of the emails.
Mr Justice Edwards-Stuart dismissed the application. In reviewing the case law, he thought there was nothing in English case law to support the idea of property in the content of information. However, this hadn't yet been considered in the context of emails and the employer/ employee relationship. He therefore considered the legal possibilities surrounding ownership of emails.
Possible owners of email content
First there was the idea that title remained with the creator of the e-mail, an idea supported by the standard rubric in many e-mail footers. However, the upshot of this interpretation was that the creator of an email could assert his title against all of the world and could ask any recipient, however far down the chain, to delete it. This was unrealistic. The reverse concept that title passed to the recipient when the e-mail was sent also didn't make sense. The sender would cease to have any right in the e-mail contents the moment he sent it, and the recipient could require the sender to delete it. The final recipient would be the only one with any right and this was impractical when emails are sent to multiple recipients at the same time.
He also considered the idea that title might remain with the creator of the email and the recipient might obtain a licence to use the content for any legitimate purpose consistent with the circumstances in which it was sent. This option was workable, but would render any proprietary interest in the e-mail contents worthless. The only way of controlling use would be to show that the use was illegitimate, which was akin to the existing equitable or contractual right of confidence. The reverse idea that title passed to the recipient when the e-mail was sent, but the sender had a licence to retain the content and use it for any legitimate purpose, was rejected for the same reasons.
Finally, there was a possibility that title was shared between sender and all recipients (including those to whom the message was forwarded) once the e-mail had been sent. However, it was questionable what value this would have.
Decision
Accordingly, the Judge could find no practical reasons that would support a proprietary right in the content of e-mails and, indeed, practical considerations militated against it. The application for inspection was therefore dismissed.
Comment
The judge thought that there was already adequate protection against misuse of information contained in e-mails under existing laws of confidentiality, copyright and breach of contract. This therefore reinforces the need for companies to ensure that employee contracts contain clear provisions regarding confidentiality and the use of emails.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
