No Proprietary Right in E-mails

November 9, 2012


In a complex case involving shipbuilding contracts, the High Court in Fairstar Heavy Transport N V v Adkins [2012] EWHC 2952 (TCC) has addressed an issue of potentially very wide importance. Edwards-Stuart J in the Technology and Construction Court was able to narrow a complex dispute to focus on one crucial matter:

‘Does Fairstar have an enforceable proprietary claim to the content of the e-mails held by Mr Adkins (and/or Claranet [the e-mail server hosts of Adkins, who took no part in the proceedings]) insofar as they were received or sent by Mr Adkins acting on behalf of Fairstar?’ 

In considering the issue, the judge looked at detailed submissions:

After considering a wide range of authorities, of which only Pennwell Publishing v Ornstien [2007] EWHC 1570 appeared to offer much support for the Fairstar position, Edwards-Stuart J stated (at [58]: ‘the preponderance of authority points strongly against there being any proprietary right in the content of information, and this must apply to the content of an e-mail, although I would not go so far as to say that this is now settled law’. 

His ruling was to some extent a reluctant one and the judgment includes a detailed and useful analysis (at [61]-[68]) of the forceful submissions of Peter Susman QC that logic and the circumstances of the modern world should encourage the court to hold that the content of an e-mail was a form of property. and that it would be unrealistic for the courts not to recognise the proprietary right of an employer or principal in electronic materials that were created by or came into the possession of his employee or agent in the course of his employment or agency. The judge stated (at [69]) that:

‘I can find no practical basis for holding that there should be property in the content of an e-mail, even if I thought that it was otherwise open to me to do so. To the extent that people require protection against the misuse of information contained in e-mails, in my judgment satisfactory protection is provided under English law either by the equitable jurisdiction to which I have referred in relation to confidential information (or by contract, where there is one) or, where applicable, the law of copyright. There are no compelling practical reasons that support the existence of a proprietary right – indeed, practical considerations militate against it.