The recent UK decision of Fairstar Heavy Transport NV v Adkins & Anor dealt with the question of whether someone could have a proprietary right to an email. However, rather than contemplating the copyright rights to an email, the claim dealt with a more abstract proprietary right.
In the case, purchasers of a Netherlands corporation (Fairstar) operating a shipping business were trying to gain access to the email correspondence between the former CEO of Fairstar (Adkins) and a Chinese shipyard which had been commissioned to build new ships for Fairstar. Since the deal was arranged prior to the purchase of Fairstar, certain specific details of the deal were only ever in the email correspondence between Adkins and the shipyard. Therefore, Fairstar’s goal was to gain access to the emails in question, which were stored on the personal server of Adkins. Fairstar claimed that their right to access these emails was proprietary in nature. Their arguments for access were limited to this proprietary right rather than on the basis of any fiduciary obligation Adkins owed to Fairstar, or on the basis that the information was confidential.
The lawyer for Fairstar presented the court with a number of cases which suggested either explicitly or implicitly that information contained in emails could be the subject of property claims. However, all of these cases were distinguished by Justice Edwards-Stuart because they failed to provide definitive reasons why information contained in emails could be someone’s property. For example, in one of the cases, Pennwell Publishing v Ornstien, an employer’s database was accessed via email by a former employee and a judge held that the information was the property of the employer. Justice Edwards-Stuart was not convinced that the same rights should be extended beyond databases to include all information contained in emails.
Without any direct precedent on the point, Justice Edwards-Stuart was in a position to consider whether there could reasonably ever be property in an email based on current practices and consequential analysis. Justice Edwards-Stuart considered 5 possible cases of a person or persons holding property in an email. He considered that either:
(1) that title to the content remains throughout with the creator (or his principal);
(2) that, when an e-mail is sent, title to the content passes to the recipient (or his principal) – this being by analogy with the transfer of property in a letter when one person sends it to another;
(3) as for (1), but that the recipient of the e-mail has a licence to use the content for any legitimate purpose consistent with the circumstances in which it was sent;
(4) as for (2), but that the sender of the e-mail has a licence to retain the content and to use it for any legitimate purpose; and
(5) that title to the content of the message, once sent, is shared between the sender and the recipient and, as a logical consequence of this, is shared not only between them but also with all others to whom subsequently the message may be forwarded
He rejected each possibility in turn on the basis that to accept that there exists property in an email would bestow upon the property owner a level of control over emails which does not conform with our traditional understanding of the email system. Since Fairstar made no other legal claims for access to Adkins’ email except on the basis of a proprietary right, their application to inspect the emails could not succeed.
The basis of the Justice Edwards Stuart’s reasoning is unsurprising. Information has not been traditionally protected on the basis of a pure proprietary right. Justice Edwards-Stuart alluded to the possibility of success for Fairstar had they expanded their legal argument to include some extra-proprietary rights to have access to the emails. Although there were reasons having to do with the internal structure of Fairstar which may have caused the lawyers for Fairstar not to raise these arguments, failing to do so may have cost them access to certain information they needed to run their business successfully. In my opinion, whether or not some different legal claim may have succeeded, the court was right to rule that an email is not property.
Adam Stevenson is a JD Candidate of Western University, faculty of law.