24 October 2013
Employer can automatically inspect content of worker agent’s emails
A business that sends emails to a worker acting as its agent has a right of ownership in the contents of the email because it is the sender. It can also copy and inspect its contents irrespective of what is in it, the Court of Appeal has ruled.
A Chief Executive was sent a number of emails by his company from its servers. For reasons to do with the way the CEO was employed, these were forwarded to an email account of his that was hosted on a third party server. Once the emails had been forwarded they were deleted on the company's servers, so the company had no record of them.
After the CEO lost his job the company wanted to use the emails as evidence in various disputes and investigations it was involved in. It therefore applied to the court to prevent the former CEO from deleting any of them, and asked for an independent inspection of them. It argued that the content of emails belongs to the sender, and the receiver has merely a licence to use it.
Initially, the High Court ruled that the company had no rights of ownership over the content of the emails. It was just 'information' with no proprietary quality. It therefore refused to grant the application. It went on to say that a business will only have a claim to the contents of emails if:
• They contain confidential information belonging to the business;
• It has copyright in the contents;
• The business has a contractual right to the content.
The Court of Appeal overturned that decision and ruled that the Chief Executive was a worker acting as agent on his employer's behalf. In those circumstances it is irrelevant to the principal's right to see it whether there is a proprietary right in information. Principals have a right to inspect their agent's documents relating to their business affairs and copy them, whether there is a proprietary right in the information in them or not: an email is such a document.
Kathryn Fielder, senior associate in the employment law team at B P Collins recommends: “businesses whose workers act as their agents should ensure they are aware and, if possible, expressly agree that documents relating to the principal's business (including emails) can be inspected by the principal – even if there is no proprietary right in the information in them.
“Businesses requiring access to the contents of emails they have sent should ensure they keep copies of them on their servers.”