Update – Right to access emails held by former members of staff

Organisations may have access to business emails stored on personal computers of their officers or staff under the principles of agency. Emails can be ‘documents relating to the affairs of’ the organisation. An officer (the agent) should provide such documents to the organisation (the principal) upon termination of the relationship.

Background

In November 2012, the High Court gave its judgment in the case of Fairstar Heavy Transport NV v Adkins & Another ([2012] EWHC 2952 (TCC)). See OBEP article: “No ownership of Information; so how can you control it?”. The case was appealed to the Court of Appeal, which gave its judgment on 19 July 2013 ([2013] EWCA Civ 886).

The defendant was the former CEO of the claimant company, who had sent and received emails relating to the company from his personal computer. Upon termination of the relationship, the company sought access to those emails.

High Court – no proprietary rights in information

The High Court case centred around the question of whether the company had proprietary rights in information contained in the emails. Further grounds were not submitted, principally because the Dutch courts had exclusive jurisdiction over wider claims on the issue. The judge decided that there was no basis for deciding that there should be property rights in the content of an email (and referred to the laws of confidential information and copyright which may provide alternative protection).

Court of Appeal – rights of a principal

The Court of Appeal took a different approach. Instead of focussing on whether there could be a property right in information, it considered whether the relationship of principal and agent between the two parties (which was not disputed), gave the company a right to be given the content of emails of the former CEO.

There is an established right under agency law for an agent to deliver to the principal documents relating to the principal’s affairs upon termination of the relationship. Whilst this has in the past generally been applied to physical records, the Court decided that it should apply equally to electronic records, including emails. The Court referred to the derivation of the word ‘document’ from the Latin ‘documentum’ referring to something which ‘instructs or provides information’, i.e. not limited to physical records.

Interestingly, the judge also did not want to reject completely the concept of a property right in information; he considered it ‘unwise’ to endorse the proposition that there could never be such a right without knowing more about the nature of the information and the circumstances.

Good news for organisations?

The result appears to be good news for organisations seeking to retrieve emails or other documents from personal equipment of former officers or staff. However, there remain other risks of allowing staff to use personal devices or email accounts for work purposes, including the reduced level of control, and potential exposure under data protection, confidentiality and intellectual property laws. Nor does the judgment detract from the benefits of making the organisation’s right to business information clear from the outset, in contracts and policies applicable to staff members. This may ultimately avoid the need for a legal dispute over the extent of any rights under agency principles.

Olivia Whitcroft, principal of OBEP, 26 July 2013

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