Email: a question of access

The query as to “who owns emails” has been raised, but left undecided, in Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, where the Court of Appeal opted to provide an agency law remedy to a claimant company in an action against its former CEO – a remedy available due to the contractual relationships involved.

Although the ownership issue remains at sea, there are steps which can be taken by advisers and businesses alike in order to safeguard a right to disclosure – such as drafting that right into contracts, and ensuring adequate backup mechanisms of emails exchanged. It may not always be the case that there is an agency relationship that can be used to help obtain access.

Proprietary claim

Mr Adkins had worked for Fairstar, a Dutch shipping company, via a service company. Fairstar was taken over by a rival shipping group and Mr Adkins’ contract was terminated. The service agreement contained a jurisdiction clause which required disputes to be dealt with by the Dutch courts.

A dispute and an investigation (resulting in a costly fine) subsequently arose in relation to a Chinese shipyard, and Fairstar accordingly sought to recover emails that Mr Adkins had sent and received in relation to this.

Fairstar’s computer systems had been set up so that emails sent to and received by Mr Adkins were automatically forwarded from Mr Adkins’ Fairstar email address to a personal one, then deleted from the Fairstar server, so that only the senders and Mr Adkins himself had access to them. Due to the exclusive jurisdiction clause, when Fairstar made an order to the court for inspection of the emails, it had to rely on ownership of the emails as justification of its right to inspect them.

The High Court held that the email content was information, which did not give rise to an “enforceable proprietary claim” and so the disclosure sought by Fairstar was not allowed.

The Court of Appeal allowed Fairstar’s appeal, but did so on the basis of the agency relationship between Fairstar and Mr Adkins. The court determined that the question as to whether or not there can be property in confidential information, or property in the content of a letter, did not need to be decided.

Right to disclosure

The Court of Appeal advised that Fairstar would be entitled to disclosure of the emails against Mr Adkins for several reasons:

The relationship between Fairstar and Mr Adkins had been that of principal and agent.

A principal is entitled to require production by the agent of documents relating to the affairs of the principal.

The meaning of “documents” included emails (reference was made to the English Civil Procedure Rules), and “content could not be separated from form”.

Materials stored on a computer are covered by the same principles of agency, and “The form of recording or storage does not detract from the substantive right of the principal as against the agent to have access to their content”.

Contract lessons

So where are we now? Not that much further forward.

Given the uncertainty in relation to email ownership at present, it seems wise to ensure that rights of disclosure are made available within business contracts.

In an employment context, clear email policies and contracts can make all the difference. For example, see the difficulties encountered in PennWell Publishing (UK) Ltd v Ornstien [2007] EWHC 1570 (QB), a case relating to a journalist who tried to claim ownership of contacts listed in his employer’s computer, and who alone had kept a copy, where it was eventually held that the data belonged to the employer.

Email ownership is a contentious area, which the Court of Appeal declined to elaborate upon. Businesses may feel they own emails which they send, or others sent on their behalf, but proving this in practice could be difficult. Advisers should persuade clients to include provisions in contracts which allow the emails to be disclosed, although measures such as enabling access on servers and adequate backup mechanisms would also be useful.