"Who owns an email?" This question recently came up when an employer challenged an employee to hand over emails exchanged in the course of his duties. The answer has lead to many businesses taking steps to tighten up on the protection of email content. For advice on how to avoid problems in your business we put this question to Dawn Cherry from the Dispute and Resolution department of Oxley and Coward Solicitors LLP.
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Introduce us what the Dispute and Resolution Department of Oxley and Coward solicitors LLP do on a day to day basis?
We deal with disputes surrounding most areas including commercial contracts and specifically employment contracts, so we also deal with copyright issues, contract dispute issues etc.
So this case in particular where this employer challenged an ex-employee to hand over his emails when he left employment. The first question would be – did he have to hand them over and if not why?
No, he did not have to hand over the emails because there were no contractual obligations to do so. This case in particular was a Dutch case, it may have slightly different implications in the UK but we do take the points that were made in this case as reported. In the employment contract there was not adequate protection to have contractual obligation for him to hand them over and basically the Court decided that there were no proprietary rights in any email. Because of the difficulty in actually enforcing those rights they had a number of questions, such as who actually owns it the sender or the recipient and how do you police and control that.
So in light of that ruling then what are you advising businesses that they do now to ensure the ownership of their emails?
Just make sure that they have contractual rights. For example, if it is an employer and employee relationship then ensure in the employment contract that there is a contractual obligation in there regarding the use and retention of emails in there, particularly in relation to emails that should be handed over and also from an operational point of view that emails of archived on a daily basis. If you do have personal email accounts make sure that emails are not sent from those accounts and that they are sent from the company accounts where other people have access to it if needed.
What were the worries here of the company regarding these emails and in particular what was to stop him handing them over but keeping a copy for himself?
Confidentiality in itself if you have confidentiality provisions in the contract you would then have potential claims if those were breached after termination of the employment. I think in this case they were actually looking at the specifics of the emails. They had got no record of the dealings that had gone on and because the employee was not obliged to hand them over they then potentially would have had to have gone back to the other party to ask them for copies of these emails, which if a dispute has arisen is unlikely to have happened so, it does make it more difficult really to see what has actually gone on between the parties. In the UK if you had that then you ended up with a Court case over the dispute of a contract for example there are provisions in the UK law where you can actually ask for those emails from the other party but it is something you should really have at the start so, it is better to have these contractual obligations in place.
So what are the practical implications for employees, should this change the way employees use work emails?
Potentially yes, more so not using personal email accounts and there may be additional obligations that they have to copy for example, if they do use a personal email account they have to copy in somebody within the company. They may have central IT department in that company for example. It may be that there is an obligation to copy them in or copy the company in to the company email account. Other than that it really is down to the employer to deal with all the other practicalities such as having them backed up and stored daily. I don’t think there is anything further for the employee to do other than if there are specific obligations.
Having used emails in businesses for many years already why are these issues only coming forward now do you think?
Unfortunately, I think more and more people are looking to litigate now, it seems to be the case especially in the times we are in at the moment. Particularly as employees are becoming more aware of the rights that they have and perhaps previously employees would not have thought twice about handing these things over.
Could this be extended to other sorts of communications like text messaging or instant messaging maybe even iChat and Skype for instance?
I think there is scope for that yes, particularly as people have smart phones and use emails on those as well. Again, its a contractual thing and normally with commercial contracts you would have the ability to negotiate those contracts at the outset but not necessarily with an employment contract, unless you are more of senior manager where you may have a little bit more leeway to negotiate things like that.
Well something for businesses to consider then, but good archiving and data management practices would go a long way to solve a lot of these issues wouldn't they Dawn?
Yes and also looking specifically at anything that is written down in the form of a contract making sure that you have sufficient terms and conditions there to start with rather than trying to rely on something towards the end that you do not have in your contract. Review employment contracts or, if you do have standard agreements that you use for commercial purposes perhaps review the terms in that as well.
For those listening now thinking that they should perhaps address this in their own organisations what would your final piece of advice be to both employers and employees in the light of the outcome of this case study?
For employers I would say check your employment contracts. From an employee’s perspective there is not much to say other than they know their employment rights so if they don’t want to hand them over they do not necessarily have to, unless there is something in their contract.