Workplace technology and confidentiality

It is not unusual for new technology and its applications to bump awkwardly against existing legal principles.  Finding the most appropriate mechanisms for addressing new-fangled mischief sometimes requires lawyers to experiment and innovate.  As in any other walk of life this can be spectacularly successful first time and on occasion it may necessitate a more iterative approach.

The rise of electronic communications and social media has presented challenges.  Recently there seems to have been a flurry of cases relating to the (mis)appropriation by employees of information which their employers believe 'belongs' to them.  In the dark ages this might have entailed photocopying lists of customers or proprietary designs.  In the digital age the issue can become a little more blurred.

The law of confidentiality has done a good job over the years addressing most issues in this regard.  Contractual provisions are often put in place to complement the common law and there are important practical measures that can be implemented in order to counter abuse - see our note on Confidentiality and employees.

Lawyers have been quick to seize upon the use of other mechanisms to supplement their arsenal in these circumstances.  This can be particularly useful in instances where there is some question over whether the information in question meets the classic 'necessary quality of confidence' test in Coco v AN Clark (Engineers) [1969] RPC 41.

In Crowson Fabrics Ltd v Rider [2007] EWHC 2942 (Ch) , British Sky Broadcasting Group plc and others v Digital Satellite Warranty Cover Ltd [2012] EWHC 2642 (Ch) and Executive Grapevine v Wall [2012] EWHC 4152 (Ch) we see the enforcement of database rights used to good effect in countering the misappropriation of information from the workplace.  In fact, further avenues were opened up in British Sky Broadcasting as the judge, Sir William Blackburne, commented in para 66 - "Infringement of database right, trade mark infringement and passing off...go hand in hand."

More recently, we have seen an increase in cases involving the exploitation of social media contacts.  The position is somewhat complicated by the personal nature of, for example, many LinkedIn accounts.  Yet, the law of confidentiality appears well placed to cope with those subtleties.  In Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] IRLR 904 we see the court acknowledging that the employer had reasonable grounds for a claim against its former employee and in Whitmar Publications Limited v Gamage and Others [2013] All ER (D) 57 (Jul), the court granted an injunction in relation to the use of LinkedIn contacts by former employees.

However, issues and complexities continue to arise.  In these sort of cases, the issue in question is often phrased in terms of who 'owns' the data.  As displayed recently in Fairstar Heavy Transport NV v Adkins [2012] All ER (D) 11 (Nov), that is perhaps not the best way to consider the issue at stake.  The case concerned the retention by a former employee of his employer's e-mails to him, now contained in a personal e-mail account.  There was no claim by the company as to use of confidential information or infringement of any intellectual property right in the e-mails.  In the High Court the parties were asked to put forward a specific question on which they wanted the court to rule.  In paragraph 11 of this High Court judgment Edwards-Stuart J expressed this as - “Does Fairstar have an enforceable proprietary claim to the content of the emails held by Mr Adkins insofar as they were received or sent by Mr Adkins acting on behalf of Fairstar?”.   The judge found that "it is clear that 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 email, although I would not go so far as to say that this is now settled law".

On appeal, Fairstar Heavy Transport NV v Adkins [2013] All ER (D) 239 (Jul), a different approach was made.  The claimant submitted that the relationship between it and its former employee had been one of agency, and a principal was entitled to inspect and copy correspondence held by its agent whether in hard copy or electronically.  The court now had no difficulty in finding a right to require production of the emails.

Many lawyers will find this latest Court of Appeal judgment quite satisfying.  When faced with a question you find problematic, it's probably because it's the wrong one isn’t it?