Emails are not automatically company property

11 December 2012

In Fairstar Heavy Transport NV v Adkins the High Court considered a case where the defendant, although he was CEO of the claimant company, was not an employee. Instead, he was the employee of a Jersey-based company which in turn provided his services to the claimant company. Following a successful hostile take-over bid, this arrangement terminated.

The problem was that the new owners of the claimant company, now in dispute with a commercial customer, wished to see emails that had passed between that customer and the defendant, acting at the time on the claimant’s behalf.

The claimant asked the court to make an order that it was entitled to inspect the emails on the basis that the emails ‘belonged’ to the claimant. The court disagreed. An email is not a form of property but just information, which does not ‘belong’ to anybody. In this case, the claimant had no legal right to inspect them.

Point to note

• No court has yet said that anyone can hold property rights over an email and no court is likely to do so. However, in other cases, there are normally other causes of action that can be more easily relied, such as copyright infringement, misuse of confidential information, breach of data protection law or breach of contract.

• In this case, there was clearly no copyright infringement or misuse of confidential information, nor was there any contract term that could be relied on, not least because there was no direct contract between the Claimant and the Defendant.

• Not that the problem in such a case may be solved by practical means, rather than by the law. In this case, all incoming emails addressed to the defendant at his email address at the claimant company were automatically forwarded to his private email address and then automatically deleted from the claimant’s server. If this had not been done, the claimant would have had their own copy of the information that they now needed.

• This case has implications for BYOD policies, especially where contractors and other non-employees are allowed to participate. We recommend that a robust BYOD policy should include a requirement for regular back-ups and synchronisation with company systems, so that copies of business related emails are always transferred into the company’s possession.

Other cases in our December 2012 UK employment Law update:

> TUPE: Court of Appeal on service provision change
> No duty not to dismiss while employee receives PHI benefits
> How to deal with previous written warnings when considering dismissal