Whose email is it anyway?

Business must take steps to protect the content of business emails through contractual agreements and operational processes such as archiving, as the courts will not treat the contents of emails as their property

Who owns email? That was the question facing the High Court recently when an employer challenged a former MD to hand over emails he had exchanged whilst in the role.

But the judgement inFairstar Heavy Transport NV v Adkins and anotherbacked up earlier rulings on ownership of information to say that no one can claim the content of emails, because proprietary rights do not exist in information.

The ruling is a reminder to business to tighten up on contracts and internal processes if they want to protect the content of email exchanges.

Explained Commercial litigation expert Deryn Fisher of Eastbourne solicitors Stephen Rimmer LLP: "From a legal perspective, it means that any contractual agreements, such as employment contracts, consultancy agreements or business contracts, should include obligations about the use and retention of emails. It also should cover for the return of emails and protect against distribution of confidential information."

Deryn added: "Operationally, companies should make sure that all company emails areregularly archived, as well as daily backing up, ideally off-site. It is best to avoid emails being sent from personal email accounts but if this happens, or external consultants are involved, then there needs to be a way to capture and archive those email exchanges as well."

The Fairstar case arose when thecompany was taken over and the employment of Mr Adkins, themanaging director, wasterminated. The new owners tried to obtain emails held by Mr Adkins that related to business transactions before the takeover, particularly a $37 million cancellation charge under a ship building contract. When he refused to hand over the emails, the company went to court to try and claim that in today's business environment, an email is a form of property.

But the judge rejected this view, reinforcing previous rulings which suggest that no proprietary 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.

In rejecting Fairstar's case, the judge said thatif an email were to be considered a form of property, this would have impractical consequences. For example, was the sender the owner? If so, they could ask for it back or for it to be deleted. Instead, he said, there was protection against misuse through copyright, reasonable restrictions on the use of confidential information, and through contract law.

This information is not intended as legal advice - Fairstar Heavy Transport NV v Adkins and another