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Staff Emails Are Not Owned By Firms, UK Judge Rules

Soulskill posted about a year and a half ago | from the what-about-their-thoughts dept.

Communications 111

Qedward writes "A high court judge has ruled that companies do not have a general claim of ownership of the content contained in staff emails. The decision creates a potential legal minefield for the terms of staff contracts and an administrative nightmare for IT teams running email servers, back up and storage. The judge ruled businesses do not have an 'enforceable proprietary claim' to staff email content unless that content can be considered to be confidential information belonging to a business, unless business copyright applies to the content, or unless the business has a contractual right of ownership over the content. Justice Edwards-Stuart added it was 'quite impractical and unrealistic' to determine that ownership of the content of emails either belongs exclusively to the creator or the recipient of an email."

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111 comments

Self-defating (2, Insightful)

Anonymous Coward | about a year and a half ago | (#41931211)

There will be but one consequence of this: Employers will add the requisite language to contract or IT/acceptable use policy. Many already have this. Absent organized/union efforts, few will refuse. Status quo re-established.

Re:Self-defating (0)

Anonymous Coward | about a year and a half ago | (#41931457)

that will solve any issues between employee and company, but still leaves open the discussion between sending and receiving company.

Re:Self-defating (3, Insightful)

nedlohs (1335013) | about a year and a half ago | (#41931555)

Which would change nothing. I realise reading the article might be too much learning for you, but you could try the summary.

Re:Self-defating (1)

Anonymous Coward | about a year and a half ago | (#41932073)

He did: "unless the business has a contractual right of ownership over the content" - namely if the business makes you sign a document saying the content of any email you send is their property, then business goes back to usual.

Re:Self-defating (1)

nedlohs (1335013) | about a year and a half ago | (#41933697)

They aren't asking for the emails he sent, so ownership of those is irrelevant. Which you'd know if you read the article of the summary.

Re:Self-defating (1)

Anonymous Coward | about a year and a half ago | (#41931755)

Restrict work email addresses to work emails only. Problem solved. I don't see any problem with this, as long as the company doesn't go as far as blocking other email [web]clients.

Re:Self-defating (0)

Anonymous Coward | about a year and a half ago | (#41932777)

Adding the language is why they thought they own it in the first place, in civilized countries there's a bunch of things you can't sign away.

Anyhow, it's not as much about what you send but also what you receive.
Basically it's just about the basic expectation that letters are private unless you choose otherwise.

If they suspect criminal honky donky they can call the cops - otherwise fuck off from the email accounts of others.

(In Finland they can get the email headers legally if they suspect something and get a permit - of course 99% of Finnish BOFH's are just fat bastards who like to read other peoples emails since they think they own the network)

Only in the UK (0, Troll)

Local ID10T (790134) | about a year and a half ago | (#41931219)

Note that this is contradicted by laws/legal precedence in most other jurisdictions...

Re:Only in the UK (1)

Anonymous Coward | about a year and a half ago | (#41931357)

By "most other jurisdictions" you mean USA? Or you actually know about other countries law? (Legal precedences in most countries are not binding, so I care only about law.)

Re:Only in the UK (1)

Anonymous Coward | about a year and a half ago | (#41931843)

By "most other jurisdictions" you mean USA? Or you actually know about other countries law? (Legal precedences in most countries are not binding, so I care only about law.)

The US government considers itself "most other jurisdictions", so yes.

Reeally? (0)

Anonymous Coward | about a year and a half ago | (#41932113)

The US government considers itself "most other jurisdictions", so yes.

Go China!

Re:Only in the UK (4, Informative)

Anonymous Coward | about a year and a half ago | (#41931377)

Definately not. In the Netherlands employers are not even allowed to read such e-mail as employees are also (by law) allowed to use company resources (internet acess, e-mail, phone, printers, ...) for private purposes to a reasonable extent and hence their privacy cannot be violated this way. I may be wrong about this, but I thought this actually has a legal basis in the EU in which case this should also apply to all other EU countries.

Re:Only in the UK (2, Informative)

Anonymous Coward | about a year and a half ago | (#41931417)

Source: http://translate.google.nl/translate?hl=nl&sl=nl&tl=en&u=http%3A%2F%2Fblog.iusmentis.com%2F2012%2F08%2F20%2Famsterdam-mag-e-mail-personeel-niet-bekijken%2F (Dutch-language original: http://blog.iusmentis.com/2012/08/20/amsterdam-mag-e-mail-personeel-niet-bekijken/). This does not mention whether there is a EU basis though.

Re:Only in the UK (1)

h4rr4r (612664) | about a year and a half ago | (#41931611)

So how do you do quality monitoring for people who are judged based on the emails they send?
I am mostly asking as we review some of our helpdesk staff that way.

Re:Only in the UK (1)

CastrTroy (595695) | about a year and a half ago | (#41931967)

I imagine that you would have the help desk people not send out an email (directly). Emails that come into your system get entered (possibly automatically) into the customer support system, and the employee responds through the customer support system, which may or may not send out an email to the customer. This way not only do you get to monitor what they're sending out, because they aren't sending an email, but rather entering a support request, but you also get better tracking of customer satisfaction if you have a good support system. If employees want to send out personal emails, they can do so from their work email, but you should probably just let them access their webmail, and tell them to use that, but helpdesk staff should not be communicating with customers directly via email.

Re:Only in the UK (1)

h4rr4r (612664) | about a year and a half ago | (#41932151)

Yes, but those systems really do normally use email as the communication method.

Request tracker is one such system. You are still talking about emails and reviewing them. Request tracker can take in an email or another form of input, create a ticket and any updates to the ticket generate an email to the customer.

Re:Only in the UK (0)

Anonymous Coward | about a year and a half ago | (#41932149)

I think you would have to get permission from the works council (=employee representation, usually mostly union-based) and even then such an exception would have to be as narrowly defined as possible. In practice, I expect that smaller companies with no in-house lawyers often just ignore the law, though they could get into trouble for doing so.

Re:Only in the UK (1)

Teun (17872) | about a year and a half ago | (#41933333)

As member of a works council I can confirm that unapproved access to E-mail accounts of employees is strictly forbidden.

The approval can be given by the employee or in cases where the employer wants access for things like fraud investigation and without letting the employee know this approval has to pass the works council. This is similar for requests like installing camera's or other snooping equipment or tapping the telephone.

Works councils are mandatory in companies with 50 or more employees and are elected every couple of years.BR> A union member can be a candidate for election via his union or he can chose to run under his own name like non-union members would.
Please keep in mind union membership is a wholly individual decision and it would be illegal to require such.
As a matter of fact, some unions are not very pro-works council as they see them as competition.

Does your helpdesk get the work done? (0)

Anonymous Coward | about a year and a half ago | (#41932377)

If yes, then they're doing fine.

If not, you don't need to do any snooping of the content. Just analyse the destination. No more is needed.

If you're working an ISP and you don't know about traffic analysis, I don't think the problem is your helpdesk goofing off...

Re:Only in the UK (1)

Neil_Brown (1568845) | about a year and a half ago | (#41934087)

So how do you do quality monitoring for people who are judged based on the emails they send?

As has been shown here, different countries have different rules — in the UK, it is relatively easy to monitor someone's email in the course of business, provided that you comply with The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 [legislation.gov.uk] , which forms an exception to the general prohibition on interception.

Re:Only in the UK (1)

Jedi Alec (258881) | about a year and a half ago | (#41935215)

Exemptions are made when it concerns e-mail or telephone calls where the purpose is reading/listening in for quality monitoring.

Re:Only in the UK (3, Informative)

Anonymous Coward | about a year and a half ago | (#41931727)

Personal communications are protected by law in Finland as well. An infamous caveat, Lex Nokia [theregister.co.uk] , was enacted a few years back. It allows the employer to monitor the email envelope information under some circumstances. Such monitoring must be reported to the Privacy Ombudsman by the company. No company has submitted such a report as yet. Some companies are doing it clandestinely, but that is a punishable crime in Finland.

Re:Only in the UK (1)

Luckyo (1726890) | about a year and a half ago | (#41933911)

Finland: Nokia pushed a law to allow them to read emails. After massive public backlash, the law did come in place, with with a fairly nice provision: any company doing this MUST report to the relevant authority that it is engaging in such actions. This report would be public.

Result: not a single report filed. Companies got scared by the massive negative backlash.

Re:Only in the UK (1)

Anonymous Coward | about a year and a half ago | (#41931569)

Rulings in UK courts have an impact throughout the entire EU (and visa versa).

Not just the UK: this is the law in Canada, too (4, Informative)

davecb (6526) | about a year and a half ago | (#41931807)

The Supreme Court of Canada recently ruled that employees have an "expectation of privacy" in emails and files on computers owned by their employers, meaning that private emails and files are

  • not the property of the company
  • cannot be snooped without a warrant
  • are not considered to be "in plain sight"

There are limitations: material from a company computer obtained by a warrant issued based on evidence from the company, if the company acted properly.

--dave

Re:Not just the UK: this is the law in Canada, too (1)

JigJag (2046772) | about a year and a half ago | (#41933255)

this is a fascinating. Would you be kind enough to forward a link to this?

Re:Not just the UK: this is the law in Canada, too (2)

davecb (6526) | about a year and a half ago | (#41934099)

Re:Not just the UK: this is the law in Canada, too (0)

Anonymous Coward | about a year and a half ago | (#41935425)

.. employees also have an expectation of good friendly working environment
and to get paid working 9-5 with overtime if they _choose_ to put in overtime

reality rarely meets expectations

Re:Not just the UK: this is the law in Canada, too (1)

davecb (6526) | about a year and a half ago | (#41935605)

The judge meant expectation in the sense of "if you don't get it, come talk to me"

--dave

Dear employees (3, Interesting)

jeffmeden (135043) | about a year and a half ago | (#41931221)

"unless the business has a contractual right of ownership over the content"

We have this extra piece of paper for you to sign; do it or you're fired. Thanks!

Re:Dear employees (2)

Neil_Brown (1568845) | about a year and a half ago | (#41931337)

We have this extra piece of paper for you to sign; do it or you're fired. Thanks!

Better to link it to a non-contractual payment or additional benefit, or else just ride the hope that no-one ever looks to question it!

Re:Dear employees (1)

h4rr4r (612664) | about a year and a half ago | (#41931601)

Just add it to the contract next go around.

Re:Dear employees (1)

Teun (17872) | about a year and a half ago | (#41933883)

Won't work, a contract can never let you sign away legal rights.

What's this obsession with wanting to look into the mailbox of your employees?
When it comes to business mails you can easily stipulate they have to be cc'd to a supervisor, colleague or use a departmental mail box instead of one with a private name.

Re:Dear employees (1)

Neil_Brown (1568845) | about a year and a half ago | (#41934061)

Won't work, a contract can never let you sign away legal rights.

Sure it can — most contracts do. When you buy a paper at the newsagent, your contract gives away your ownership of the sum represented by the coins you hand across, in favour of the newsagent, and, in return, you gain a legal right, being ownership of the property in the newspaper.

There may be some things which cannot be transferred by a simple contract — ownership of copyright is one such thing in the UK, as is transfer of land, each of which require "signed writing" rather than merely a contract — and some things which cannot be transferred not matter how formal the transfer (I cannot grant you the right to kill me, for example, although that's perhaps not a good example of "signing away a legal right"), but, generally speaking, contracts can, and do, operate to transfer legal rights.

Re:Dear employees (1)

Teun (17872) | about a year and a half ago | (#41935387)

Here we're talking about privacy, that's an inalienable right, of a higher order than simple goods, like you can't volunteer to become a slave.

It *might* become a different discussion when the mail address is not including your name but instead something like dept.supervisor@company.com

Re:Dear employees (1)

Neil_Brown (1568845) | about a year and a half ago | (#41936001)

Here we're talking about privacy, that's an inalienable right,

I wonder if we are talking about different things? I may not be able to renounce my right to privacy, but I can certainly agree to things which, but for my agreement, would amount to an intrusion of my privacy — I can agree to let a third party read my email, for example, even if I cannot (as a matter of law) agree that I do not have a right of privacy.

I wonder if different jurisdictions come into it — under English law, I can see no problem, from a legal perspective, with someone making an informed choice to let a third party access their email and, indeed, consent is not necessary for an employer to monitor an employee's email, providing it's done within the ambit of the statutory framework.

Re:Dear employees (2)

nedlohs (1335013) | about a year and a half ago | (#41931589)

If I send Bob an email to his work email address, the fact that he signed such a peice of paper with his employer has no relevance to whether I own the content I created.

Re:Dear employees (2)

jeffmeden (135043) | about a year and a half ago | (#41932249)

The heart of this issue is whether or not Company A who was effectively paying the employees salary (through a contracting firm Company B) was entitled to have claim to anything said employee created while in tenure, even if it left the premises of Company A and was instead residing at Company B. A contract would remedy this (although there are probably better ways to deal with it from an IT perspective). No, you don't have to worry if you send an email to someone under such a contract, except for the notion that they will certainly inspect and scrutinize said email.

Re:Dear employees (2)

nedlohs (1335013) | about a year and a half ago | (#41933471)

That's not what the article (or summary) says. They aren't asking for things the employee created, they are asking for the email the employee received.

Re:Dear employees (0)

Anonymous Coward | about a year and a half ago | (#41932251)

Please give me that, and I'll see you court next week :).

Only in the UK. (1)

DavidClarkeHR (2769805) | about a year and a half ago | (#41932395)

"unless the business has a contractual right of ownership over the content"

We have this extra piece of paper for you to sign; do it or you're fired. Thanks!

There was a recent ruling in Canada [lawtimesnews.com] that affirmed that privacy is independent from ownership. So in the UK? It's still quite big brother (but we knew that from the cameras EVERYWHERE). But in Canada? We're still protected against this sort of skullduggery.

Re:Dear employees (1)

PPH (736903) | about a year and a half ago | (#41932491)

No need. Most companies have a policy that what you create on company time, with company resources, belongs to the company. Its been that way since long before Al Gore invented teh Internets.

Many companies do have exceptions allowing some personal use of their network (phone system, pads of paper, etc). But the default assumption is that it belongs to the company.

Re:Dear employees (1)

Elldallan (901501) | about a year and a half ago | (#41933711)

Many countries however have have civilized laws where the company does not automatically own your work unless it was created in the normal performance of your job or on behalf of the company.
The system where the default assumption that everything you create belongs to the employer amounts to intellectual slavery and ought to be abolished wherever it exists.

Re:Dear employees (2)

PPH (736903) | about a year and a half ago | (#41933871)

Many countries however have have civilized laws where the company does not automatically own your work unless it was created in the normal performance of your job or on behalf of the company.

That would be stuff you did on company time and company equipment.

The system where the default assumption that everything you create belongs to the employer amounts to intellectual slavery and ought to be abolished wherever it exists.

Good luck with that. The battle being fought now is over whether the company owns what you do on your own time or not. Some enlightened jurisdictions side with employees on this one. Although non-compete company policies can still be applied. If you go home and built a better widget while your company job is building widgets, they (the company) might be able to prohibit you from marketing your invention, depending on company policies in place at the time.

I used to work for Boeing. They had (and still have?) a policy requiring the disclosure of all inventions and publications and reserving the right of first refusal [wikipedia.org] . You can fight it if you want. If you can afford to spend the next decade or so in court. Washington State won't back an employee up, as Boeing is already moving engineering work out. And all they (Boeing) needs is another excuse to send work to China, Russia, or India.

Re:Dear employees (1)

Teun (17872) | about a year and a half ago | (#41933845)

We have this extra piece of paper for you to sign; do it or you're fired. Thanks!

A condition that would make the demand illegal from the get-go and could bring the company in some very hot water :)

I don't want to own emails! (1)

Anonymous Coward | about a year and a half ago | (#41931223)

I'd rather the company has all rights to my email. That way I'm not liable for anything and it all seems to make more sense anyway. It's sort of like intellectual property. If you create something for a company while being paid by the company, the company owns it, not the developer, and that it the way it has to be.

I don't see why emails are any different.

Re:I don't want to own emails! (3, Interesting)

Neil_Brown (1568845) | about a year and a half ago | (#41931325)

If you create something for a company while being paid by the company, the company owns it,

It's usually a little more nuanced than that.

If you are talking about copyright, where a protectable work is made by an employee in the course of his employment, the employer is the owner. However, if you create the work as a contractor, the law makes you the first owner, although you may agree contractually to assign ownership to the company.

For patents, ownership of an invention by an employee in the course of performance of his duties, where that employee's normal duties include the expectation of invention or else because the employee had a special duty to further the employer's interests, rests with the employer (although, where the invention is of "outstanding benefit", compensation may be payable to the employee notwithstanding that he is being paid to invent). Any other invention made by an employee is owned by the employee.

Re:I don't want to own emails! (1)

Anonymous Coward | about a year and a half ago | (#41931651)

I'm not sure if copyright would make much of a difference.

If understood the case correctly, the issues is that Company A forwwarded the emails to Company B that employeed their contract employee, then Company A deleted their copy of the emails. They now want to look at the emails because of a potential issue "spending irregularlities" and are demanding that the former contract employee and Company B let them see the emails.

Even if copyrighted, I don't know if that would help. As owners of the copyright, Company A could prevent them from copying or publishing the emails to any third party, but there is not some mechanism to demand back a copy. If you write some novel, and for whatever reason destroy your own only copy, anyone else with got a copy has no obligation to give you their physical copy of it.

Re:I don't want to own emails! (1)

someones (2687911) | about a year and a half ago | (#41936237)

Its not copyrighted unless you publish it. (Europe)

if you publish it, there are other copies out there, you can fall back to.
if you dont publish anything, its not copyrighted and your argument is invalid anyway.

Re:I don't want to own emails! (0)

Anonymous Coward | about a year and a half ago | (#41931769)

If you create something for a company while being paid by the company, the company owns it,

It's usually a little more nuanced than that.

If you are talking about copyright, where a protectable work is made by an employee in the course of his employment, the employer is the owner. However, if you create the work as a contractor, the law makes you the first owner, although you may agree contractually to assign ownership to the company.

For patents, ownership of an invention by an employee in the course of performance of his duties, where that employee's normal duties include the expectation of invention or else because the employee had a special duty to further the employer's interests, rests with the employer (although, where the invention is of "outstanding benefit", compensation may be payable to the employee notwithstanding that he is being paid to invent). Any other invention made by an employee is owned by the employee.

It's even more nuanced than that.

Where'd you do the work?

Who provided the materials?

How closely were you supervised?

See CCNV v. Reid [wikipedia.org] .

i see what you did there (3, Interesting)

alphatel (1450715) | about a year and a half ago | (#41931225)

Having seen the content of several hundred thousand emails between employees, you do not want to own the content. It is 90% non-sense, 10% work-related and 33% "I can't wait until 5 O'Clock!"?

Re:i see what you did there (3, Funny)

NatasRevol (731260) | about a year and a half ago | (#41931839)

What about the other 50%?

Re:i see what you did there (1)

drkim (1559875) | about a year and a half ago | (#41934887)

Having seen the content of several hundred thousand emails between employees, you do not want to own the content. It is 90% non-sense, 10% work-related and 33% "I can't wait until 5 O'Clock!"?

What about the other 50%?

The other 50% were from the accounting department.

Not so much that "emails are not owned by firms" (5, Insightful)

Neil_Brown (1568845) | about a year and a half ago | (#41931241)

The court did not hold that "email are not owned by firms" as such. Rather, it was a more nuanced (and, in my opinion, very sensible) ruling, albeit one which does not seem to me to extend established law very much.

The ruling essentially holds that only property is capable of ownership — an established position, although, confusingly, capability of being owned is one of the tests as to whether something is capable of being property; defining "property" is no easy task. The court considered whether an email constituted "property" or not, and held that, unless the content of an email was the subject of copyright (a property right), or else constituted confidential information, an email is not intrinsically property — an established position again, to my mind.

The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding — I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.

If nothing else, this seems to me to be a pretty common sense outcome. If employment contracts do not already reflect this position, I would expect employers to look to amending them pretty quickly.

Re:Not so much that "emails are not owned by firms (1)

rapiddescent (572442) | about a year and a half ago | (#41931345)

compare and contrast to the MegaUpload case where the US prosecuting legal team are claiming that the digital assets, even if they have copyright of the owner or are confidential, are not the property of the owner if stored on third party systems. interesting times.

Re:Not so much that "emails are not owned by firms (2)

Neil_Brown (1568845) | about a year and a half ago | (#41931413)

that the digital assets, even if they have copyright of the owner ... are not the property of the owner

This is correct, in my view, albeit for a convoluted legal reason. I do not own the document I have just written — rather, I own the copyright which protects that document. I do not own the underlying asset — I would say that a combination of bits is not capable of being property, at least for the purposes of English law — but I do own the copyright, being in itself a property right. All that means, in practice, is that I have an exclusive right to do certain things in respect of the underlying work, and the ability to trade and grant those rights.

Re:Not so much that "emails are not owned by firms (1)

udachny (2454394) | about a year and a half ago | (#41931463)

An employee uses company computer to type in bits and bytes, regardless of how they are stored or communicated to other computers, they are property of the company.

All the equipment and electricity and support that is used to manipulate them, all of it is a company resource.

Sending an email from your company account means using resources of the company and adds liability to the company in every case, that's because whatever you are sending is also 'stamped' with the company's name basically (originating address at the minimum).

Here is an analogy: you are a guest at somebody's house, you use their ink and their paper and you write a note. The ink and paper belongs to the your host, not to you. You can claim that the message is yours, but every bit of media belongs to the owner of the house.

Re:Not so much that "emails are not owned by firms (3, Insightful)

Neil_Brown (1568845) | about a year and a half ago | (#41931497)

Here is an analogy: you are a guest at somebody's house, you use their ink and their paper and you write a note. The ink and paper belongs to the your host, not to you. You can claim that the message is yours, but every bit of media belongs to the owner of the house.

I see the case here, and the general principle behind it, as fully agreeing with you. The difference is that, in the case of your handwritten note, the paper and ink are capable of ownership. In the case of an email, the bits and bytes behind it are not — the email itself is not capable of ownership, and thus cannot be owned. Rather, it is the copyright subsisting in the work comprising the message which is owned. A physical world / digital world difference, to my mind, which leads to the same result.

bits and bytes, regardless of how they are stored or communicated to other computers, they are property of the company.

This is where we see a difference, I think — my view is that "bits and bytes" are not, in themselves, cannot be property, and thus cannot be owned (or else cannot be owned, and thus are incapable of being property...). Copyright is a mechanism for establishing a right of ownership which relates closely to that arrangement of bits and bytes, but does not mean ownership of those bits and bytes.

Re:Not so much that "emails are not owned by firms (1)

Maximus633 (1316457) | about a year and a half ago | (#41931655)

You make an excellent point here. Very well thought out response. I can see where you are going with the points now. Again very interesting.

Re:Not so much that "emails are not owned by firms (1)

udachny (2454394) | about a year and a half ago | (#41931729)

I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.

The other point is that anytime you use company's resources to pass a message anywhere, there is liability attached to that message. Any message can be used to sue somebody for example. If my memory isn't failing, then this quote belongs to Cardinal Richelieu: "give me 5 lines of text written by the most honest person and I'll find a reason to hang them for it".

Re:Not so much that "emails are not owned by firms (1)

Neil_Brown (1568845) | about a year and a half ago | (#41932133)

I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.

I guess I'm not yet in that position — the company owns the media, sure. The company owns the power supplies it has bought for its servers. It may own the copyright over the document sitting, as bits and bytes, on that disk. But that does not mean, in my head, that the sequence of bits and bytes, the magnetic changes in state on the disk, are capable of being property in themselves. I can't point you to anything authoritative on that, though, other than perhaps giving you a general reference in case this sort of thing interests you (and, by "this sort of thing," I mean English law of personalty, a subject which is not taught very often, even at law school, sadly), and that's Michael Bridge's excellent, if now rather dated, "Personal Property Law."

Re:Not so much that "emails are not owned by firms (0)

Anonymous Coward | about a year and a half ago | (#41932973)

I am quite certain that bits and bytes are not an ephemeral concept

A physical copy of the data in the sense of a paritcular hard drive or other storage medium containing those bits is quite physical. The company could have just used that if they had it. But that is not what this case was about, the question is whether they owned those bits and bytes when they were copied to someone else's computer and if they could demand it back. In that case, the concept of information is more ethereal. Copyright gives some sense of ownership of the information independant of physical copy, but even that is limited compared to normal sense of ownership. If you loaned them a hard drive with the bits and bytes on it, you can ask for the hard drive back, if you send them an electronic copy, you can stop them from making more copies (within the limits of copyright law), but can't ask for them to destroy or send back the copy they have without some extra agreement.

Re:Not so much that "emails are not owned by firms (0)

Anonymous Coward | about a year and a half ago | (#41931585)

Yes, and just as you could demand that note back, the company can do what it wants with the servers and data stored on them, barring any standing agreements. However, if the person went and photocopied that note and mailed off copies of it, you can't do anything about that, even if the original physical copy is yours. Or to be more specific to this case, if you let someone write that note, let them copy it on to their own paper they own, then destroy the copy on the paper you own, you can't demand to look at their copy.

Re:Not so much that "emails are not owned by firms (1)

nedlohs (1335013) | about a year and a half ago | (#41931683)

Analogies are supposed to have some vague relation to the actual thing being talked about.

There was no company computer used to type in the bits and bytes.

Re:Not so much that "emails are not owned by firms (1)

Teun (17872) | about a year and a half ago | (#41934181)

Clearly you are from a jurisdiction where companies are persons.

In Europe we have strong privacy regulation and by the time you use an account called jhon.doe@company.com the stuff you send and receive must be for... John Doe!

Now when said company would set up an account called dept.supervisor@company.com it becomes a wholly different matter.

Or do you think it's plausible mail for udanchny@gmail.com belongs to Gmail? It's got nothing to do with who owns the computer or pays for the power, it's your name and your message.

Re:Not so much that "emails are not owned by firms (1)

Maximus633 (1316457) | about a year and a half ago | (#41931615)

This is an interesting point to be made.

Although I am not from the UK nor do I know if this applies but my question would be this. If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?

Re:Not so much that "emails are not owned by firms (1)

Neil_Brown (1568845) | about a year and a half ago | (#41931759)

If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?

There is perhaps an important difference between who is responsible for what is said in an email, and who owns the copyright of the text of an email.

Let's assume that, in the process of leaving a company, I create a email summarising a piece of research I have done for the company, so that others can continue it — I've done this in the course of my employment. Within the note, I have included a message that defames my boss. I send the email company-wide. I am responsible for the defamation but, since I created the email in the course of my employment, the copyright to my email is owned by the company.

Re:Not so much that "emails are not owned by firms (-1)

Anonymous Coward | about a year and a half ago | (#41931705)

Ah UK judges... geriatric, pigheaded, alcoholic morons.

It cost money to produce - it is property - or does this extend to most of the work lawyers produce not being intellectual property?

I immediately jump to replace 'email' with any other type of document/correspondence/work.

Viable alternatives exist for personal correspondence.

Re:Not so much that "emails are not owned by firms (1)

Neil_Brown (1568845) | about a year and a half ago | (#41932079)

It cost money to produce - it is property - or does this extend to most of the work lawyers produce not being intellectual property?

I agree with you in that I don't see a difference between email, documents, spreadsheets and so on. None of these are inherently property, existing as files on a computer. One might own copyright relating to a given document, but does not own the document itself. Spending money is not one of the tests of copyright (except in terms of a sui generis database right, which protects "investment"), but it is likely that the effort which comes from spending money is sufficient to meet the threshold.

I don't agree that spending money on something necessarily results in a property right arising in whatever it is that you have created :)

Re:Not so much that "emails are not owned by firms (0)

Anonymous Coward | about a year and a half ago | (#41932401)

Property in the sense that if you send that email to someone and then delete your copy, you are entiteled to ask for your copy back? That doesn't work with physical documents, as you suggest considering, so why should email be any different? It seems like a quite fair ruling, that is not about the physical media containing the information in the emails, but the information in emails. And it didn't rule that emails can't be IP, just that in the case it doesn't qualify for IP (not every random work of writing qualifies for copyright), there is nothing left to own in terms of information.

Re:Not so much that "emails are not owned by firms (1)

drinkypoo (153816) | about a year and a half ago | (#41931857)

The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding â" I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.

Rule 1: Corporate email is only to be used for company business.
Rule 2: All email regarding company business is considered proprietary and confidential.
Do we even need a rule 3 saying that all email belongs to the employer, at least effectively, since the above clearly imply the right to vet email to find out if you're complying with policies?

Common sense is more common than you think! (1)

DavidClarkeHR (2769805) | about a year and a half ago | (#41932437)

If nothing else, this seems to me to be a pretty common sense outcome. If employment contracts do not already reflect this position, I would expect employers to look to amending them pretty quickly.

It seems that there is some sort of underground movement in the court systems all over the world. 20 years ago, people suspected that corrupt officials skewering the laws. Now, people suspect that there are caring, compassionate human beings infiltrating the government.

Copyright? (0)

Anonymous Coward | about a year and a half ago | (#41931269)

If a company watermark each email with their logo can they legitimately claim copyright ownership of each one?

right decision (3, Informative)

pantaril (1624521) | about a year and a half ago | (#41931297)

The decision creates a potential [...] administrative nightmare for IT teams running email servers, back up and storage.

I wonder what nightmare could this decision create for IT admins... sounds like FUD to me.

I for one welcome this decision, similar legislation is in place where i live (EU - Czech Republic).

Personal correspondence belongs to the employee and employer should not be able to legaly read it without the emplyee's consent.

Re:right decision (1)

Anonymous Coward | about a year and a half ago | (#41931439)

I agree with this decision. These days, email is a surrogate for snail-mail sent in "the old days", and a company could NOT open a sealed/stamped letter without a court order or permission of the sender (or recipient if on the receiving end).

Re:right decision (0)

Anonymous Coward | about a year and a half ago | (#41932955)

That's fine, but it wasn't standard protocol to use the office paper and stamps to send personal mail. Don't send personal e-mail at work if you require privacy.

Re:right decision (4, Funny)

mrgrey (319015) | about a year and a half ago | (#41931621)

No nightmare. From my standpoint it would make my life as an admin easier.

Employee: "Hey. I lost this email from so and so a while back"
Me: "Oooooo... Ya. Sorry about that. We don't back your email up. We only backup company data."

Employee: "Hey. I keep getting spam."
Me: "Sounds like a personal problem to me. It's your email. Fix it."

Re:right decision (1)

aaarrrgggh (9205) | about a year and a half ago | (#41931977)

If personal correspondence is using the company account it isn't so personal. If the employer blocks access to external mail accounts then maybe there is a reasonable claim that content is personal, but barring that it seems like it should be the company's property.

While on the clock... (1, Interesting)

cigawoot (1242378) | about a year and a half ago | (#41931393)

Most emails written using a company's email system are done while on the clock. This makes these emails property of the company in my opinion.

The company I work for also required that I sign a system access agreement, which includes that anything created (including emails) are the properly of the firm, period. Doesn't matter if you're killing time between calls to write lyrics to the song, technically those lyrics belong to the company if they're written using a firm-issued computer connected to the firm's network.

Re:While on the clock... (1)

Neil_Brown (1568845) | about a year and a half ago | (#41931435)

Most emails written using a company's email system are done while on the clock. This makes these emails property of the company in my opinion.

Assuming that the email in question meets the threshold for copyright protection, and are created in course of employment, then that's probably true. But if I reply to your email with "lol," I'd argue that this creates nothing which is capable of being owned — in particular, no copyright, unless it was a particularly unusual situation, which is the most likely mechanism for establishing a right of ownership.

Re:While on the clock... (3, Insightful)

nedlohs (1335013) | about a year and a half ago | (#41931955)

So you are saying that if I write an email on my company's time then that email is the property of my company? Thus if I send that email to your work address then it is still the property of my company and hence your company has no legal right to a demand another copy of it.

So you are agreeing with the judge's decision.

What a difference (2)

kelemvor4 (1980226) | about a year and a half ago | (#41931425)

What a difference there is between the US and UK. In the US, emails are the property of D.H.S. whether there is a law protecting against that or not.

The key (2)

kelemvor4 (1980226) | about a year and a half ago | (#41931483)

In my mind a crucial part of this story is that the guy was forwarding his company emails to a separate account. Where I work, that's been a violation of company policy for as long as I can remember. The email administrator should at least be getting chewed out for allowing mail to be forwarded *and deleted* from company mail servers without any backup in place.

I know for sure that my employer saves all employee emails and instant messages for some predefined amount of time. Had they done this - which I'm assuming should be standard practice for any corporation - they wouldn't have needed to try and access this dude's personal email account.

Mismanagement... but I guess they already knew that since they had let their CEO go.

Re:The key (1)

h4rr4r (612664) | about a year and a half ago | (#41931763)

So no one is allowed to use any forwards at all?
Or you just review all forwards to make sure none leave the domain? How do you prevent someone from using something like imapsync or fetchmail or similar tools that behave like normal clients?

We only preserve messages for certain classes of employees here. We do have email backups, but we do not archive all email for execs which was a business not technology decision. We are not a publicly traded company.

Less problems if... (1)

Anonymous Coward | about a year and a half ago | (#41931495)

Sometimes the line is so thin.

My policy when assigning mail addresses to my users is as simple as NEVER using user's given names. I create sales@, techserv@, invoicing@... but never JohnSmith@...

If the user's name is part of the email address (personalised email addresses), that user can pledge that the company gets direct benefit from this user's image/prestige/call what ever you want to call it: you implicitly give the ownership of the account to that user. Generic accounts have no owner. Same policy for document directories (folders).

It is clear that a generic address is owned by the company and it happens that it is (temporarily or circumstancially) assigned to a particular user. Not to mention the fat that all the problems about replacing people or people leaving the company are avoided: no redirects, no automatic messages "this person no longer works in that company"...

Re:Less problems if... (1)

h4rr4r (612664) | about a year and a half ago | (#41931717)

How do calendars work then?

Lets say a sysadmin needs to meet with VP of operations. Do all the sysadmins get the invite? Do you have sysadminA, sysadminB and sysadminC accounts? If you do you are right back to redirects.

This sounds like it could only work for an incredibly small company.

Re:Less problems if... (1)

aaarrrgggh (9205) | about a year and a half ago | (#41932031)

There is the other half of the email address, which denotes the link to the actual company. Is it for a person who is presently @ a location, or is it a company currently represented by a person?

Re:Less problems if... (0)

Anonymous Coward | about a year and a half ago | (#41932063)

That's... probably the worst email policy I've ever heard, from 100-some-employee small business to enterprise IT. I mean, your entire problem of "making it clear the company owns the mailbox" is solved by a proper Acceptable Use Policy. Now you've got to remember what everybody's function is, create confusion for multiple people with the same position, not to mention create questions about what happens if someone takes over a new position. And, like h4rr4r says, what about calendars? Integration with an IM system? What if someone else permanently or temporary has to take control of a mailbox, because someone leaves or goes on vacation, but personal data like benefits information from HR is in the email? People shouldn't be using company email for personal use, but that doesn't mean there isn't anything job-related that's still personal and confidential. This sounds like a really convoluted and small-scale practice that doesn't do anything but save you from having to get people to sign an AUP.

Re:Less problems if... (0)

Anonymous Coward | about a year and a half ago | (#41932593)

I accept that it is not the best of policies, but in legal terms it can be.

I tell you why: At least in my country (Spain), privacy is a constitutional right. That means, even if you sign an agreement, this agreement can be voided due to the fact that a superior law exists.

For example (to illustrate): if you agree with your company that you accept a salary which is lower than the official minimum wage, even if you put it in black and white in an official contract, this contract is automatically voided by the existence of a "superior level" law.

Same thing happens with privacy matters. The historical facts so far are that when this subject apperared in court, judges ruled in favour of the company when generic mail names were used and ruled in favour of the user when people's names were used. Using generic names is a lawyer's recommendation.

I know that it is not the best of mail policies, but they have also their advantadges: Mailboxes are assigned to functionalities, not people -I want to contact the sysadmin, indepentdently of his name-. The use of generic names also help to keep mail use to strictly professional matters.

CAREFUL (0)

Anonymous Coward | about a year and a half ago | (#41931923)

It also means a judge can apply the same thing to your home email. They can claim it is not yours and so you don't have authority over it.

Legal Discovery Proceedings (3, Interesting)

aaarrrgggh (9205) | about a year and a half ago | (#41931927)

How the hell do you do legal discovery data mining on email if it isn't the compan's property? This would be quite a mess for US companies trying to defend themselves.

OK, so where is the problem? (0)

Anonymous Coward | about a year and a half ago | (#41931981)

When you get an email account from your ISP, even if the email is stored on their servers, they don't get a right to the content.

Despite this, they DO actually manage to make backups, run the email servers and all that jazz.

So, where's the problem here?

The obverse would be problemtatic too: the company owns anything I write therefore if I write something illegal, it is owned by the company. If I pirate a copy, it is not mine, it is the companies. I could not be done for copyright infringement, the company would. I would get the sack for that, but I would not then be liable for the criminal or civil charge of copyright infringement.

And the backups? Continuing infringements.

I doubt they want it that way either. Indeed, they don't see it that way.

So they only want to see this decision as a minefield because they don't want to have to ask to look through everything their employees do (though never reciprocating).

Re:OK, so where is the problem? (1)

itsdapead (734413) | about a year and a half ago | (#41932345)

When you get an email account from your ISP, even if the email is stored on their servers, they don't get a right to the content.

Despite this, they DO actually manage to make backups, run the email servers and all that jazz.

So, where's the problem here?

ISPs aren't responsible for the actions of their customers in the same way that a company is responsible for the actions of its employees.

Of course, ultimately, the problem is caused by a growing, parasitic legal system, 'legislate to fix everything' governments, and large corporations with large legal departments who are happy with the disproportionately chilling effect of compliance regulations and defending against endless stupid lawsuits upon their smaller competitors.

The bigger issue is INCOMING email (0)

Anonymous Coward | about a year and a half ago | (#41935243)

It's one thing to claim outgoing email as work product, but incoming email belongs to whom?

Ownership of information is a metaphor (1)

fa2k (881632) | about a year and a half ago | (#41935815)

You can't just go ahead and discuss ownership without defining what you actually mean by that. Normally when talking about information it's a shorthand for owning the copyright, but there are also cases where you "own" a license to play an MP3 file, etc., but you do not own the copyright.

The discussion here seems to be about access:

Fairstar claimed that it automatically deleted the emails that it forwarded through its servers to Adkins' Cadenza account when he worked as chief executive.

But Justice Edwards-Stuart ruled that the company had no right over the ownership of the email content and therefore rejected Fairstar's request for an independent inspection of Adkins' emails to take place.

If they discuss copyright ownership , and the business owns the copyright for the emails, there's no law that says that someone has to give me back my copyrighted work if I lose it and someone else has a legal copy of it... Is this just a metaphor run amok or am I missing something?

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