Who owns staff emails?

In most organisations there exists a policy about what’s acceptable and what’s not regarding the use of the employers’ technology for personal purposes.

Generally, relying to a large extent on goodwill and reasonableness on both sides, the lines of such policies are becoming more and more blurred, particularly as more and more employees are starting to use their own mobile devices to communicate for work whilst on the move.  Monitoring the outcome of these types of policy is normally done on a global, trend basis rather than on individual usage.  However, most employers reserve the right to investigate an employee who they believe may be abusing the technology provided to them to do their job.

All of that said, the personal use of technology is only one side of the equation.  A recent hearing in front of Mr Justice Edwards-Stuart in respect of Fairstar Heavy Transport NV has brought a whole new angle to the issue of who owns emails.  In this case the high court judge, Mr Justice Edwards-Stuart, was asked to conclude whether or not businesses could be said to have an “enforceable proprietary claim” over the content of emails held by staff.

The case, which came about because Fairstar, the employer, had won a court order preventing an employee from deleting certain emails which he had received from the company’s servers.  The employee, who was effectively contracted to work for Fairstar by another company, had, in the course of his work, agreed a contract with a Chinese client that subsequently gave rise to a dispute between Fairstar and the client.  Fairstar had argued that in order to resolve the issue that they needed access to the employee’s emails.  They did this on the basis that it was their policy to delete emails which had been forwarded to the employee.

In this particular case, Mr Justice Edwards-Stuart ruled that Fairstar had no right over the ownership of the email content and rejected their request to instruct an independent inspection of the employee’s emails.

The wider reaching impact of this case is that this judge ruled that businesses couldn’t be said to have an “enforceable proprietary claim” over staff emails unless:

  1. The content can be considered to be confidential information belonging to a business;
  2. Copyright subsists in the content that belongs to a business;
  3. That business has a contractual right of ownership over the content.

This case seems to throw into question some of the existing assumptions about the ownership of emails and the use of technology in the workplace.  On the basis that neither sender nor recipient appears to have exclusive ownership over the content of emails in the workplace, it falls on you, the employer to make sure your ‘t’s’ are crossed and your ‘i’s’ are dotted when it comes to any possible disputes.  What this would appear to mean from a business point of view is that any emails which are sent to employees or sub-contractors, which may be relied on as future evidence of activity or agreements should be retained on your servers so you can call on them if needs be.  While the practicalities of this may pose certain logistical issues at the outset, it would certainly appear to be an investment worth making.

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