Death and the inbox

In Lexis®PSL IP & IT we have developed a series of Q&As that reflect scenarios and practical issues which practitioners might face.

The LexisAsk service in Lexis®PSL delivers answers to typical and topical problems or issues that our customers face.  The ‘best’ (ie most popular, interesting, relevant or topical) of these questions and answers are then modelled into a ‘Q&A’ style format, and published.

The purpose of a Q&A is to provide a quick overview of the relevant key considerations, together with links into useful information (from Lexis®PSL and LexisLibrary), allowing either a quick refresher or a starting point for deeper research.

In response to a question asked this month we look at some issues to consider when access to a deceased person's email inbox is required.

Who do the emails in the inbox belong to?

The court considered the question of email ownership in the recent case of Fairstar Heavy Transport NV v Adkins where a non-employee sent and received emails on company business from a private email account. The court held there was no binding authority to the effect that there was a proprietary right in information, nor did logical or practical considerations suggest that the content of an email, being information, was a form of property.

On appeal however, the court examined the nature of the relationship and the relationship between the parties, as opposed to the existence of any 'proprietary right' to the information:

'The conclusion that I have reached on this appeal makes it unnecessary to explore the question whether information in the content of the emails is property owned by Fairstar, either as a matter of fact or law. The distinction drawn in the preliminary issue between an electronic communication and the content of it and the claim to a proprietary right in the content was not the real point at issue. It has led to some confusion in the arguments advanced and to error in the outcome. As explained below, the position is that emails and their content stored and held in the computer are, in my view, either documents or should be treated as documents, for the purposes of determining the scope of the legal incidents of the agency relationship that survive its termination.'

In the case of