English Court Finds No Property Right in Information

The High Court of England and Wales (Technology and Construction Court) has held that an employer has no proprietary right in emails sent by the company’s CEO that would give the company the right to see the content of the emails. The case is Fairstar v Adkins [2012] EWHC 2952 (TCC). (For various reasons no claim arising from copyright or confidentiality could be made, and the employment contract did not deal with the question.)

The court reviews a great deal of English (and a bit of Canadian) law on the point. It also considers the practical implications of holding that either the sender or the recipient has a property right in the contents of an email. (para 60 – 69).

This was not a case where the employee was using the correspondence contrary to the interests of the employer, but a case where the employer, under new ownership, wanted to find out what had been communicated between its former CEO and third parties.

Would the case be decided in the same way in Canada? We have R v Stewart in the Supreme Court of Canada in 1988, holding that information as such could not be stolen because there was no property in it. (Ian Kyer has written a detailed review of the circumstances and issues in that case – Tucker, Ziff & Muir, Canadian Property Law Cases in Context, Osgoode Society, 2012 – suggesting it was wrongly decided.) The English Court cites at para 53 Binnie J’s reasons in Cadbury Schweppes Inc v FBI Foods Ltd.

How would you want to plead the case so that new management (ownership) of a business can find out what was done by the previous management that has legal implications for the company now?

(h/t Baker & McKenzie IT updates)

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Comments

  1. The unusual aspect to this case is that the CEO was not an employee of Fairstar, but working as a contractor. In other words, there was no employment contract but an agreement to provide services. Emails to the CEO were automatically forwarded to his private email account and deleted from the Fairstar system. No emails were sent from him through the Fairstar system. That is a very different situation to one where an employee CEO operates his or her electronic communications through the Company’s email system. An important lesson here for management.