Emails not considered your property...so what?

The surprising decision of the High Court (discussed below) has been overturned by the Court of Appeal, which found in favour of Fairstar and ordered Adkins to hand over the emails. The judges in the Court of Appeal believed that it was “unnecessary” to consider whether the emails were the property of Fairstar, as the High Court had done.

Since Adkins, as Fairstar’s CEO, was acting as their agent, Fairstar had the right to see and make copies of his correspondence, including emails stored on his private computer. As a result of this decision, the situation surrounding the handing over of emails has been returned to the state that everyone believed it to be in the first place. It is however, still sensible to deal with the issue in contracts of employment and for services.

Recent publicity following a High Court judgement in Fairstar Heavy Transport v Adkins that emails do not belong to anyone may have misled people into believing that Court Orders for the delivery up of emails were no longer available, says Geoffrey Sturgess.

The case concerned Fairstar Heavy Transport’s attempt to obtain for the purposes of litigation between themselves and another in the courts of Holland, copies of emails sent and received by Adkins, their ex CEO, using his own PC.  Fairstar claimed that as Adkins had sent and received these emails in his capacity as their CEO he should be bound to hand them over.

Their attempt was unsuccessful, and while the judge expressed regret that he was unable to give Fairstar what they wanted, he went on to say that it would be completely impractical to regard emails as anyone’s property as they could very easily exist on multiple computers in multiple ownership.

In a UK court case the handing over of emails can be ordered against the parties if they could be evidence. In intellectual property litigation third parties not involved in the case, but with knowledge of the background, can be ordered to hand over material including emails. You can also be ordered to hand them over if you are contractually obliged to do so.  Had the case been taking place in England, Fairstar would have had other legal avenues to follow to obtain copies of the emails.  However, as the case was in the Dutch courts they were forced to allege that they owned them and Mr Adkins should pass them over.

Geoffrey explains: “It is extremely dangerous to allow employees, particularly senior employees, to hold company confidential information on their own IT devices which includes phones and smartphones. If they are to be permitted to do so, the contract of employment should include an express provision requiring them to pass copies of all of them to the employer on demand as well as the more usual provision just requiring them to delete them.

“The same applies, but more so, in general contracting, particularly IT contracting. If you are letting someone else host your emails you need the right to see them, even if the contract has ended.”

For more information on this topic, or for other Commercial advice, please contact Geoffrey or the Commercial Team at Warner Goodman LLP on 02380 717717 or visit the website www.warnergoodman.co.uk.

ENDS

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