No ownership of information; so how can you control it?

The recent case of Fairstar Heavy Transport NV v Adkins & Another ¹ has re-emphasised that information (in this case, the content of emails) is not in itself property. Therefore, if a business does not have information it needs in its possession, it does not have a right to demand copies from a third party by claiming ownership of the information itself.

It is therefore important for an organisation to apply contractual and practical controls to ensure it has copies of and access to business communications and information which are being created by its staff and other third parties (e.g. agents or contractors).

Some measures for organisations to consider include:

• Resources: Provide staff and other parties representing the organisation (such as contractors or directors) with communications and data facilities which are under the control of the organisation, for example business email addresses and secure data storage facilities. The organisation will then have access to communications and data on its own systems as and when required.
• Contracts: Include provisions relating to business information in contracts (and associated procedures) with staff and such other parties. Terms may include:
  • a requirement to use business email addresses and communications systems for business-related communications (and a restriction on using personal email addresses);
  • how and where to save and store communications and information;
  • confidentiality of business communications;
  • a right of the organisation to access communications and other information; and
  • a requirement to deliver to the organisation all copies of relevant communications and information upon request and upon termination of the relationship.

These are, of course, also sensible precautions from a data security perspective, and ensuring confidential or important business information is not misused or distributed further than intended.

Organisations should also take into account other laws which will impact ownership of and rights to communications and other information-based documents or materials. These include:

• Communications and other materials may, in some circumstances, attract intellectual property rights, such as copyright and database rights, which are capable of ownership. Organisations will therefore also want to take steps to ensure that intellectual property rights subsisting in its business materials are owned by it, and that it can access such materials. Again, this can be achieved through contractual and practical measures such as those outlined above.
• Individuals sending, receiving or who are the subject of a communication or other information may have rights to access a copy under data protection laws (which will also require anyone who holds that information not to misuse it).
• The public has a right of access to information held by public authorities under freedom of information laws.

Olivia Whitcroft, principal of OBEP, 9 November 2012

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This article provides general information on the subject matter and is not intended to be relied upon as legal advice. If you would like to discuss this topic, please contact Olivia Whitcroft using the contact details set out here: Contact Details