[author: Tim Banks]
Here’s a brain teaser. Who owns an e-mail? The sender? The recipient? Both? Typical e-mail footers seem to assert some type of ownership by the sender by directing that the e-mail is only for the attention of an intended recipient and that the sender prohibits retention and use by other persons. In the U.K, the answer to who owns an e-mail appears to be neither the sender nor the recipient.
In Fairstar Heavy Transport N.V. v. Adkins,  EWHC 2952, decided by the Technology and Construction Court of the Queen’s Bench Division of the English High Court, the issue was whether the plaintiff company, “Fairstar” had a proprietary interest over e-mails held by the defendant “Adkins” who was formerly the CEO of Fairstar. Adkins was not directly employed by Fairstar. Instead, Fairstar contracted with Adkins’ company. The plaintiff had been taken over by a competitor in a hostile bid and Adkins had been terminated.
According the court decision, Adkin’s incoming emails while he was CEO would be automatically forwarded by Fairstar’s server to Adkin’s e-mail account hosted by a third party. Copies of the e-mails on Fairstar’s server were automatically deleted after being forwarded. Copies of e-mails sent by Adkins did not go through Fairstar’s server unless someone at Fairstar was copied.
Fairstar wanted access to the e-mails in relation to the construction of a vessel in a Chinese shipyard, which turned out to be a substantial liability for Fairstar and with respect to which Adkins was involved in the negotiations. Fairstar’s position was that, notwithstanding that it had no claim to the medium in which the e-mails were stored, it had a proprietary claim to the content of the e-mails.
In examining the possibility of a proprietary claim, the court considered five options:
1. Title to the e-mail remains with the creator (or his or her employer) irrespective of who receives the e-mail or how many times it is forwarded.
2. Title to the e-mail passes to the recipient (or his or her employer).
3. In the alternative to (1), even though title to the e-mail remains with the creator, the recipient has a licence to use the content for any legitimate purpose consistent with the circumstances in which the e-mail was sent.
4. In the alternative to (3), even though title has passed to the recipient, the creator continues to have a licence to retain the content and to use it for any legitimate purpose.
5. In the alternative to each of the foregoing, title is shared between the sender and recipient and anyone else to whom the e-mail is sent.
The court concluded that options (1) and (2) were not workable. Indeed, either option would lead to the possibility of a party having the right to demand that an e-mail (subsequently regretted) be returned or destroyed.
The court held that options (3) and (4), which involve one party retaining ownership and the other party a licence (presumably irrevocable) to use the e-mail, effectively left the concept of ownership devoid of any real meaning because only illegitimate uses could be precluded. If a breach of copyright or confidentiality was not in issue, there would be very little, if any use, left to restrain as being illegitimate.
The court also rejected option (5). The court hypothesized that the result of a joint proprietary might mean presumably that if a supplier lost its database of e-mails, it could demand all of its correspondents to deliver up a copy of the e-mail in order to reconstitute the database.
In the case of a letter, the recipient of the letter “owns” the letter in the sense of the tangible thing. Of course, the owner’s right to reproduce the content of the letter is subject to copyright just as I might own the book on my bookshelf but my entitlement to reproduce the book or passages from it are subject to applicable copyright laws.
The question of who owns an e-mail is of course more complex since it is not a tangible thing in the same way as a letter or book. However, might it not be analogous to the author making a copy of a letter and sending the original or the copy or the author of book retaining a copy of the manuscript. Author and recipient each are entitled to own and use their own copy subject to copyright laws. No one would suggest that the author could demand return of the copy of the letter or book, subject, of course, to duties of confidence or other equitable rights and obligations. Might the reason why the options discussed by the court don’t make sense have to do with thinking about an e-mail as a single thing, whereas an e-mail is a message transmitted electronically and always already involves a copy (perhaps many times over) once created and even more so when sent. Thoughts?