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Who Owns Email?

lorryIn deciding that a transport company is entitled to inspect and copy the business-related emails of its former chief executive officer (CEO) following the termination of his appointment, the Court of Appeal has left open the possibility that intangible information may in some circumstances be viewed as ‘property’.

The CEO had contracted with the company through a corporate vehicle and was thus not an employee. Following his departure, he had refused the company access to emails contained within his personal computer which had been lodged with solicitors for safe-keeping pending resolution of the dispute.

The company pursued the novel argument that that it had an enforceable propriety interest in the contents of the emails which related to its affairs and were of vital importance to the conduct of its business. However, the High Court declined to authorise inspection and copying of the emails on the basis that no proprietary right to pure information was capable of existing in law.

Ruling on the case, the Court of Appeal declined to enter into that controversy and noted that it would be ‘unwise’ for it to endorse the proposition that there can never be property in information. However, in upholding the company’s appeal, the Court ruled that its case succeeded on conventional agency principles.

The Court found that the absence of a proprietary right to the contents of the emails did not affect the company’s legal right as principal to an inspection and copying remedy against the CEO who had formerly acted as its agent. The termination of the CEO’s appointment did not end the binding duty upon him which had arisen from the agency relationship and the company was therefore entitled to require production by him of documents relating to its affairs.