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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.
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 Pennwell Publishing (UK) v Isles, it was decided that data incorporated into an employer's systems becomes company property. If data is stored outside the company's systems, however, Fairstar indicates the company has no ownership.
The above decisions have specific implications when it comes to considering the use of 'Bring Your Own Device' (BYOD) and communications conducted by non-employees such as contractors. Even if a non-employee complies with the company's prescribed separation protocols and their device has specific folders for storing work-related information, the information is still outside the company's systems. If the circumstances you are dealing with involves a non-employee it would be worth checking to see if there is a contractual right of ownership asserted in any relevant contract.
A similar issue arises for employees, although it is less pronounced as there is a wider range of mechanisms by which the information could be shown to be the employer's property. Even so, it is prudent to check any relevant employment contract, if dealing with an employee, to see if it contains an express agreement that all business-related information is the company's property regardless of where it is stored.
If you need to consider issues in relation to BYOD it may be useful to refer to our Drafting Notes in precedent: Bring your own device (BYOD) policy. Although these Drafting Notes are designed to assist in drafting a policy of this kind, they may be useful for you to read through if the circumstances you are dealing with include the use of an individual's own device and you need to interrogate a policy or simply think about some of the issues raised in deciding how you may be able to gain access to the deceased's persons inbox where some of the emails may have been created on that individual's own device.
If there might be material contained in the deceased person's inbox that is subject to copyright, you may also wish to consider the following information:
Practice Note: Copyright authorship and ownership—this sets out considerations in determining authorship and explains joint and unknown authorship which may be important for you to establish dependent on the content of any emails in the inbox you are trying to gain access to. The Copyright, Designs and Patents Act 1988 defines the author of a work as the person who created it. The author as creator is not always the owner of a work, although it is usually the case that he is the first owner of copyright unless employed, in which case the employer is.
Practice Note: Works that are protected by copyright—this explains what copyright is together with what works are protected by it, and also Practice Note: Copyright formalities
Access is generally governed by contractual terms and conditions of use. In the case of public email providers (eg Gmail, Hotmail, Yahoo! Mail) access is usually restricted to the registered users under the provider's terms and conditions. This does present issues on death but some providers have mechanisms to request such access—see Death and the Internet which provides a useful summary of these for a number of providers and, for example, Yahoo's terms (governed by the laws of Ireland) which include the provision:
‘No Right of Survivorship and Non-Transferability. Your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account will be cancelled upon your death. If we receive a copy of a death certificate, the relevant account may be cancelled and all its contents permanently deleted.’
Similarly, contractual terms and conditions apply to access to, for example, an individual's company mailbox. In these circumstances it may well be that the employment contract or associated Internet, electronic communications and social media policy will allow access, so you should check these if applicable.
If the deceased's personal email account is in issue, you may also wish to consider the provisions of art 8 of the European Convention on Human Rights (the right to respect for family and private life), which includes correspondence.
For further information on probate considerations when accessing a deceased person's inbox, see Q&As: Issues to consider when you need to access to a deceased person's inbox—Probate considerations (Part 2).
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