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Staff Emails Are Not Owned By Firms, UK Judge Rules
Qedward writes "A high court judge has ruled that companies do not have a general claim of ownership of the content contained in staff emails. The decision creates a potential legal minefield for the terms of staff contracts and an administrative nightmare for IT teams running email servers, back up and storage. The judge ruled businesses do not have an 'enforceable proprietary claim' to staff email content unless that content can be considered to be confidential information belonging to a business, unless business copyright applies to the content, or unless the business has a contractual right of ownership over the content. Justice Edwards-Stuart added it was 'quite impractical and unrealistic' to determine that ownership of the content of emails either belongs exclusively to the creator or the recipient of an email."
There will be but one consequence of this: Employers will add the requisite language to contract or IT/acceptable use policy. Many already have this. Absent organized/union efforts, few will refuse. Status quo re-established.
Note that this is contradicted by laws/legal precedence in most other jurisdictions...
"You want to know how to help your kids? Leave them the fuck alone." -George Carlin
"unless the business has a contractual right of ownership over the content"
We have this extra piece of paper for you to sign; do it or you're fired. Thanks!
I'd rather the company has all rights to my email. That way I'm not liable for anything and it all seems to make more sense anyway. It's sort of like intellectual property. If you create something for a company while being paid by the company, the company owns it, not the developer, and that it the way it has to be.
I don't see why emails are any different.
Having seen the content of several hundred thousand emails between employees, you do not want to own the content. It is 90% non-sense, 10% work-related and 33% "I can't wait until 5 O'Clock!"?
When the foot seeks the place of the head, the line is crossed. Know your place. Keep your place. Be a shoe.
The court did not hold that "email are not owned by firms" as such. Rather, it was a more nuanced (and, in my opinion, very sensible) ruling, albeit one which does not seem to me to extend established law very much.
The ruling essentially holds that only property is capable of ownership — an established position, although, confusingly, capability of being owned is one of the tests as to whether something is capable of being property; defining "property" is no easy task. The court considered whether an email constituted "property" or not, and held that, unless the content of an email was the subject of copyright (a property right), or else constituted confidential information, an email is not intrinsically property — an established position again, to my mind.
The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding — I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.
If nothing else, this seems to me to be a pretty common sense outcome. If employment contracts do not already reflect this position, I would expect employers to look to amending them pretty quickly.
If a company watermark each email with their logo can they legitimately claim copyright ownership of each one?
The decision creates a potential [...] administrative nightmare for IT teams running email servers, back up and storage.
I wonder what nightmare could this decision create for IT admins... sounds like FUD to me.
I for one welcome this decision, similar legislation is in place where i live (EU - Czech Republic).
Personal correspondence belongs to the employee and employer should not be able to legaly read it without the emplyee's consent.
compare and contrast to the MegaUpload case where the US prosecuting legal team are claiming that the digital assets, even if they have copyright of the owner or are confidential, are not the property of the owner if stored on third party systems. interesting times.
Most emails written using a company's email system are done while on the clock. This makes these emails property of the company in my opinion.
The company I work for also required that I sign a system access agreement, which includes that anything created (including emails) are the properly of the firm, period. Doesn't matter if you're killing time between calls to write lyrics to the song, technically those lyrics belong to the company if they're written using a firm-issued computer connected to the firm's network.
that the digital assets, even if they have copyright of the owner ... are not the property of the owner
This is correct, in my view, albeit for a convoluted legal reason. I do not own the document I have just written — rather, I own the copyright which protects that document. I do not own the underlying asset — I would say that a combination of bits is not capable of being property, at least for the purposes of English law — but I do own the copyright, being in itself a property right. All that means, in practice, is that I have an exclusive right to do certain things in respect of the underlying work, and the ability to trade and grant those rights.
What a difference there is between the US and UK. In the US, emails are the property of D.H.S. whether there is a law protecting against that or not.
An employee uses company computer to type in bits and bytes, regardless of how they are stored or communicated to other computers, they are property of the company.
All the equipment and electricity and support that is used to manipulate them, all of it is a company resource.
Sending an email from your company account means using resources of the company and adds liability to the company in every case, that's because whatever you are sending is also 'stamped' with the company's name basically (originating address at the minimum).
Here is an analogy: you are a guest at somebody's house, you use their ink and their paper and you write a note. The ink and paper belongs to the your host, not to you. You can claim that the message is yours, but every bit of media belongs to the owner of the house.
MY OTHER COMMENTS
In my mind a crucial part of this story is that the guy was forwarding his company emails to a separate account. Where I work, that's been a violation of company policy for as long as I can remember. The email administrator should at least be getting chewed out for allowing mail to be forwarded *and deleted* from company mail servers without any backup in place.
I know for sure that my employer saves all employee emails and instant messages for some predefined amount of time. Had they done this - which I'm assuming should be standard practice for any corporation - they wouldn't have needed to try and access this dude's personal email account.
Mismanagement... but I guess they already knew that since they had let their CEO go.
Sometimes the line is so thin.
My policy when assigning mail addresses to my users is as simple as NEVER using user's given names. I create sales@, techserv@, invoicing@... but never JohnSmith@...
If the user's name is part of the email address (personalised email addresses), that user can pledge that the company gets direct benefit from this user's image/prestige/call what ever you want to call it: you implicitly give the ownership of the account to that user. Generic accounts have no owner. Same policy for document directories (folders).
It is clear that a generic address is owned by the company and it happens that it is (temporarily or circumstancially) assigned to a particular user. Not to mention the fat that all the problems about replacing people or people leaving the company are avoided: no redirects, no automatic messages "this person no longer works in that company"...
Here is an analogy: you are a guest at somebody's house, you use their ink and their paper and you write a note. The ink and paper belongs to the your host, not to you. You can claim that the message is yours, but every bit of media belongs to the owner of the house.
I see the case here, and the general principle behind it, as fully agreeing with you. The difference is that, in the case of your handwritten note, the paper and ink are capable of ownership. In the case of an email, the bits and bytes behind it are not — the email itself is not capable of ownership, and thus cannot be owned. Rather, it is the copyright subsisting in the work comprising the message which is owned. A physical world / digital world difference, to my mind, which leads to the same result.
bits and bytes, regardless of how they are stored or communicated to other computers, they are property of the company.
This is where we see a difference, I think — my view is that "bits and bytes" are not, in themselves, cannot be property, and thus cannot be owned (or else cannot be owned, and thus are incapable of being property...). Copyright is a mechanism for establishing a right of ownership which relates closely to that arrangement of bits and bytes, but does not mean ownership of those bits and bytes.
Yes, and just as you could demand that note back, the company can do what it wants with the servers and data stored on them, barring any standing agreements. However, if the person went and photocopied that note and mailed off copies of it, you can't do anything about that, even if the original physical copy is yours. Or to be more specific to this case, if you let someone write that note, let them copy it on to their own paper they own, then destroy the copy on the paper you own, you can't demand to look at their copy.
This is an interesting point to be made.
Although I am not from the UK nor do I know if this applies but my question would be this. If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?
You make an excellent point here. Very well thought out response. I can see where you are going with the points now. Again very interesting.
Analogies are supposed to have some vague relation to the actual thing being talked about.
There was no company computer used to type in the bits and bytes.
I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.
The other point is that anytime you use company's resources to pass a message anywhere, there is liability attached to that message. Any message can be used to sue somebody for example. If my memory isn't failing, then this quote belongs to Cardinal Richelieu: "give me 5 lines of text written by the most honest person and I'll find a reason to hang them for it".
MY OTHER COMMENTS
If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?
There is perhaps an important difference between who is responsible for what is said in an email, and who owns the copyright of the text of an email.
Let's assume that, in the process of leaving a company, I create a email summarising a piece of research I have done for the company, so that others can continue it — I've done this in the course of my employment. Within the note, I have included a message that defames my boss. I send the email company-wide. I am responsible for the defamation but, since I created the email in the course of my employment, the copyright to my email is owned by the company.
The Supreme Court of Canada recently ruled that employees have an "expectation of privacy" in emails and files on computers owned by their employers, meaning that private emails and files are
There are limitations: material from a company computer obtained by a warrant issued based on evidence from the company, if the company acted properly.
--dave
davecb@spamcop.net
The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding â" I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.
Rule 1: Corporate email is only to be used for company business.
Rule 2: All email regarding company business is considered proprietary and confidential.
Do we even need a rule 3 saying that all email belongs to the employer, at least effectively, since the above clearly imply the right to vet email to find out if you're complying with policies?
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
It also means a judge can apply the same thing to your home email. They can claim it is not yours and so you don't have authority over it.
How the hell do you do legal discovery data mining on email if it isn't the compan's property? This would be quite a mess for US companies trying to defend themselves.
When you get an email account from your ISP, even if the email is stored on their servers, they don't get a right to the content.
Despite this, they DO actually manage to make backups, run the email servers and all that jazz.
So, where's the problem here?
The obverse would be problemtatic too: the company owns anything I write therefore if I write something illegal, it is owned by the company. If I pirate a copy, it is not mine, it is the companies. I could not be done for copyright infringement, the company would. I would get the sack for that, but I would not then be liable for the criminal or civil charge of copyright infringement.
And the backups? Continuing infringements.
I doubt they want it that way either. Indeed, they don't see it that way.
So they only want to see this decision as a minefield because they don't want to have to ask to look through everything their employees do (though never reciprocating).
It cost money to produce - it is property - or does this extend to most of the work lawyers produce not being intellectual property?
I agree with you in that I don't see a difference between email, documents, spreadsheets and so on. None of these are inherently property, existing as files on a computer. One might own copyright relating to a given document, but does not own the document itself. Spending money is not one of the tests of copyright (except in terms of a sui generis database right, which protects "investment"), but it is likely that the effort which comes from spending money is sufficient to meet the threshold.
I don't agree that spending money on something necessarily results in a property right arising in whatever it is that you have created :)
Go China!
I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.
I guess I'm not yet in that position — the company owns the media, sure. The company owns the power supplies it has bought for its servers. It may own the copyright over the document sitting, as bits and bytes, on that disk. But that does not mean, in my head, that the sequence of bits and bytes, the magnetic changes in state on the disk, are capable of being property in themselves. I can't point you to anything authoritative on that, though, other than perhaps giving you a general reference in case this sort of thing interests you (and, by "this sort of thing," I mean English law of personalty, a subject which is not taught very often, even at law school, sadly), and that's Michael Bridge's excellent, if now rather dated, "Personal Property Law."
If yes, then they're doing fine.
If not, you don't need to do any snooping of the content. Just analyse the destination. No more is needed.
If you're working an ISP and you don't know about traffic analysis, I don't think the problem is your helpdesk goofing off...
Property in the sense that if you send that email to someone and then delete your copy, you are entiteled to ask for your copy back? That doesn't work with physical documents, as you suggest considering, so why should email be any different? It seems like a quite fair ruling, that is not about the physical media containing the information in the emails, but the information in emails. And it didn't rule that emails can't be IP, just that in the case it doesn't qualify for IP (not every random work of writing qualifies for copyright), there is nothing left to own in terms of information.
I am quite certain that bits and bytes are not an ephemeral concept
A physical copy of the data in the sense of a paritcular hard drive or other storage medium containing those bits is quite physical. The company could have just used that if they had it. But that is not what this case was about, the question is whether they owned those bits and bytes when they were copied to someone else's computer and if they could demand it back. In that case, the concept of information is more ethereal. Copyright gives some sense of ownership of the information independant of physical copy, but even that is limited compared to normal sense of ownership. If you loaned them a hard drive with the bits and bytes on it, you can ask for the hard drive back, if you send them an electronic copy, you can stop them from making more copies (within the limits of copyright law), but can't ask for them to destroy or send back the copy they have without some extra agreement.
In Europe we have strong privacy regulation and by the time you use an account called jhon.doe@company.com the stuff you send and receive must be for... John Doe!
Now when said company would set up an account called dept.supervisor@company.com it becomes a wholly different matter.
Or do you think it's plausible mail for udanchny@gmail.com belongs to Gmail? It's got nothing to do with who owns the computer or pays for the power, it's your name and your message.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
It's one thing to claim outgoing email as work product, but incoming email belongs to whom?
You can't just go ahead and discuss ownership without defining what you actually mean by that. Normally when talking about information it's a shorthand for owning the copyright, but there are also cases where you "own" a license to play an MP3 file, etc., but you do not own the copyright.
The discussion here seems to be about access:
Fairstar claimed that it automatically deleted the emails that it forwarded through its servers to Adkins' Cadenza account when he worked as chief executive.
But Justice Edwards-Stuart ruled that the company had no right over the ownership of the email content and therefore rejected Fairstar's request for an independent inspection of Adkins' emails to take place.
If they discuss copyright ownership , and the business owns the copyright for the emails, there's no law that says that someone has to give me back my copyrighted work if I lose it and someone else has a legal copy of it... Is this just a metaphor run amok or am I missing something?
No we do not, because it doesn't. US is a major exception to the rule that business email is not property of the employer and when it is, his rights are severely limited by privacy legislation.
US is a major exception because it has a very different concept of privacy from most of the Western world.
Its actually quite a logical interpretation.
If I send you an image who owns the image? What if I send an email via another mail server.... does the intermediate mailserver own everything passing through the server? What if there were no people involved in any of the mailservers and every machine was randomly mailing the contents of random sequence of bytes... Who owns the random sequence of bytes? What if the random sequence just happened to match, exactly, a music album? All of this is a philosophical nightmare.... What if the people who owned the machines all died and there were no estates involved, does the government then own all of the emails? Do they get to own them but not read them, do they need warrants?
If my memory isn't failing, then this quote belongs to Cardinal Richelieu: "give me 5 lines of text written by the most honest person and I'll find a reason to hang them for it".
In fact, he refer to a old french law that basically said that writing more than 5 lines of text was illegal and that prosecurots could be hang freely. Hence his 2nd name Cardinal de Twitterlieu. This was for example why so much people died during the st barthelemy Night, etc. But after the french revolution, this has disappeared of course, replaced by a much more complex and convoluted law ( since now, it would be legal to write one ).
So for rule 1, should I consider that the spam is company business ? And for the rule 2, should people who send confidential information be fired, so how do people send email to partners, customers, etc ? Shouldn't managers approve each confidential email disclosure first ?