Does an employer have a claim in property to the emails, or the content of emails, that were sent by employees from their employer’s email accounts?
The High Court recently considered this question in the context of an application for interim relief in a team move case. The draft order sought by the claimants (Capita and another) included a provision requiring the ex-employee defendants to forward to the claimants’ solicitors “copies of all emails that they have received into any non-Capita email account from any email account at Capita (including their own)” (emphasis added).
The application for interim relief and the application for permission to appeal were both dismissed (Capita plc and another v Darch and others  EWHC 1248 (Ch) and Capita plc and another v Darch and others  EWHC 1401). The judge’s reasoning and summary of the legal position indicates that the question of who owns an employee’s emails and their content remains open and requires careful scrutiny of the facts of each case.
No proprietary right in employee’s emails
The judge dismissed the claimants’ argument that an employer had a proprietary right in their employees’ emails. The grounds on which the argument was dismissed are considered below.
- The wording of the draft order was “considerably wider” than the standard disclosure obligations which the defendants would have in the course of litigation and was framed in a way that would capture personal and private emails.
- Applying the factors identified in Aon Ltd v JCT Reinsurance Brokers Ltd  EWHC 3448 (QB):
- the claimants could formulate a case without this relief;
- the width of the order sought was excessive;
- there would not be any saving of costs;
- damages were likely to be an adequate remedy for Capita;
- Capita did not need the emails to be able to take pragmatic steps to protect their business from future loss; and
- the emails were not needed to police other aspects of the relief sought by Capita.
- The draft order would, or would be likely to, infringe the individual defendants’ right to respect for private and family life guaranteed by Article 8 of the ECHR. The judge deemed that different considerations would arise if the emails and their contents were the employer’s property and Article 1 of the First Protocol to the ECHR was engaged. Even in these circumstances, the nature of the rights would affect the balancing exercise and, given that the relief sought included private information, the balance would fall in favour of the employee.
In addition, the trend in the authorities pointed strongly against there being any proprietary right in the content of information. Thus, the argument that the employer owned the emails and their content was not well founded in law. Three Court of Appeal decisions were considered which supported the conclusion that personal information about private life could not be treated in the same way as tangible property:
- In Fairstar Heavy Transport NV v Adkins  EWCA Civ 886 a company sought to retrieve emails stored on the personal computer of its former CEO. The emails that related to his personal or private affairs were excluded from the relief sought. The Court of Appeal allowed the company’s appeal on the basis that it had the right to require its former agent to produce documents (in paper or electronic form) relating to the affairs of the principal. The “proprietary” character of the claim was a distraction from the centrality of the agency relationship. Mummery LJ made clear, however, that the law was far from settled:
“The claim to property in intangible information presents obvious definitional difficulties, having regard to the criteria of certainty, exclusivity, control and assignability that normally characterise property rights and distinguish them from personal rights … Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life.”
- In Your Response Ltd v Datateam Business Media Ltd  EWCA Civ 281, the Court of Appeal held that a lien could not be exercised over an electronic database. Floyd LJ drew a distinction between:
- the information itself;
- the physical medium on which the information is recorded; and
- the rights to which the information gives rise.
He concluded that “the physical medium and the rights are treated as property, [but] the information itself has never been.” While the database did not constitute property for the purposes of the common law lien, Moore-Bick LJ left open the question of whether it could amount to property at all.
- In Environment Agency v Churngold Recycling Ltd  EWCA Civ 909, the Court of Appeal, applying the authorities above, found that the tort of conversion did not extend to electronic copies of documents for the purposes of the Torts (Interference with Goods) Act 1977.
Guidance for those advising employers
This case provides useful guidance for an employer intending to make an application to recover its former employees’ work emails. In particular, it is suggested that:
- Such an application should probably not be framed as a proprietary claim to the emails and their content, but instead be made on the grounds of the right to the contents of emails in the context of an agency relationship between the parties (that is, that a principal is entitled to require production by the agent of documents relating to the affairs of the principal).
- There may also be intellectual property rights to be pursued.
- The relief sought in the draft order must not be drafted in terms that are too wide and should include an express carve-out for personal and private emails.