Staff Emails Are Not Owned By Firms, UK Judge Rules 111
Qedward writes "A high court judge has ruled that companies do not have a general claim of ownership of the content contained in staff emails. The decision creates a potential legal minefield for the terms of staff contracts and an administrative nightmare for IT teams running email servers, back up and storage. The judge ruled businesses do not have an 'enforceable proprietary claim' to staff email content unless that content can be considered to be confidential information belonging to a business, unless business copyright applies to the content, or unless the business has a contractual right of ownership over the content. Justice Edwards-Stuart added it was 'quite impractical and unrealistic' to determine that ownership of the content of emails either belongs exclusively to the creator or the recipient of an email."
Self-defating (Score:2, Insightful)
There will be but one consequence of this: Employers will add the requisite language to contract or IT/acceptable use policy. Many already have this. Absent organized/union efforts, few will refuse. Status quo re-established.
Re:Self-defating (Score:4, Insightful)
Which would change nothing. I realise reading the article might be too much learning for you, but you could try the summary.
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He did: "unless the business has a contractual right of ownership over the content" - namely if the business makes you sign a document saying the content of any email you send is their property, then business goes back to usual.
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They aren't asking for the emails he sent, so ownership of those is irrelevant. Which you'd know if you read the article of the summary.
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Restrict work email addresses to work emails only. Problem solved. I don't see any problem with this, as long as the company doesn't go as far as blocking other email [web]clients.
Only in the UK (Score:1, Troll)
Note that this is contradicted by laws/legal precedence in most other jurisdictions...
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By "most other jurisdictions" you mean USA? Or you actually know about other countries law? (Legal precedences in most countries are not binding, so I care only about law.)
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By "most other jurisdictions" you mean USA? Or you actually know about other countries law? (Legal precedences in most countries are not binding, so I care only about law.)
The US government considers itself "most other jurisdictions", so yes.
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The US government considers itself "the only jurisdiction that counts",
Re:Only in the UK (Score:4, Informative)
Definately not. In the Netherlands employers are not even allowed to read such e-mail as employees are also (by law) allowed to use company resources (internet acess, e-mail, phone, printers, ...) for private purposes to a reasonable extent and hence their privacy cannot be violated this way. I may be wrong about this, but I thought this actually has a legal basis in the EU in which case this should also apply to all other EU countries.
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Source: http://translate.google.nl/translate?hl=nl&sl=nl&tl=en&u=http%3A%2F%2Fblog.iusmentis.com%2F2012%2F08%2F20%2Famsterdam-mag-e-mail-personeel-niet-bekijken%2F (Dutch-language original: http://blog.iusmentis.com/2012/08/20/amsterdam-mag-e-mail-personeel-niet-bekijken/). This does not mention whether there is a EU basis though.
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So how do you do quality monitoring for people who are judged based on the emails they send?
I am mostly asking as we review some of our helpdesk staff that way.
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Yes, but those systems really do normally use email as the communication method.
Request tracker is one such system. You are still talking about emails and reviewing them. Request tracker can take in an email or another form of input, create a ticket and any updates to the ticket generate an email to the customer.
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The approval can be given by the employee or in cases where the employer wants access for things like fraud investigation and without letting the employee know this approval has to pass the works council. This is similar for requests like installing camera's or other snooping equipment or tapping the telephone.
Works councils are mandatory in companies with 50 or more employees and are el
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So how do you do quality monitoring for people who are judged based on the emails they send?
As has been shown here, different countries have different rules — in the UK, it is relatively easy to monitor someone's email in the course of business, provided that you comply with The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 [legislation.gov.uk], which forms an exception to the general prohibition on interception.
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Exemptions are made when it concerns e-mail or telephone calls where the purpose is reading/listening in for quality monitoring.
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Personal communications are protected by law in Finland as well. An infamous caveat, Lex Nokia [theregister.co.uk], was enacted a few years back. It allows the employer to monitor the email envelope information under some circumstances. Such monitoring must be reported to the Privacy Ombudsman by the company. No company has submitted such a report as yet. Some companies are doing it clandestinely, but that is a punishable crime in Finland.
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Finland: Nokia pushed a law to allow them to read emails. After massive public backlash, the law did come in place, with with a fairly nice provision: any company doing this MUST report to the relevant authority that it is engaging in such actions. This report would be public.
Result: not a single report filed. Companies got scared by the massive negative backlash.
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Rulings in UK courts have an impact throughout the entire EU (and visa versa).
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From what I know, this is already and since a few year the same situation in Germany, in France, In Switzerland, in Finland ( seen earlier in the threads ), in Netherland ( seen also earlier ), and there is various EU wide privacy directive, that should be converted to local law, and could be the reason why the judge ruled this.
Not just the UK: this is the law in Canada, too (Score:5, Informative)
The Supreme Court of Canada recently ruled that employees have an "expectation of privacy" in emails and files on computers owned by their employers, meaning that private emails and files are
There are limitations: material from a company computer obtained by a warrant issued based on evidence from the company, if the company acted properly.
--dave
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this is a fascinating. Would you be kind enough to forward a link to this?
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Michael Geist's descriptiption: http://www.michaelgeist.ca/content/view/6689/135/ [michaelgeist.ca]
And a law firm's description: http://www.mcinnescooper.com/publications/scc-finds-limited-reasonable-expectation-of-privacy-in-work-computer-but-evidence-still-admissible/ [mcinnescooper.com]
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much appreciated
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The judge meant expectation in the sense of "if you don't get it, come talk to me"
--dave
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Dear employees (Score:4, Interesting)
"unless the business has a contractual right of ownership over the content"
We have this extra piece of paper for you to sign; do it or you're fired. Thanks!
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We have this extra piece of paper for you to sign; do it or you're fired. Thanks!
Better to link it to a non-contractual payment or additional benefit, or else just ride the hope that no-one ever looks to question it!
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Just add it to the contract next go around.
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What's this obsession with wanting to look into the mailbox of your employees?
When it comes to business mails you can easily stipulate they have to be cc'd to a supervisor, colleague or use a departmental mail box instead of one with a private name.
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Won't work, a contract can never let you sign away legal rights.
Sure it can — most contracts do. When you buy a paper at the newsagent, your contract gives away your ownership of the sum represented by the coins you hand across, in favour of the newsagent, and, in return, you gain a legal right, being ownership of the property in the newspaper.
There may be some things which cannot be transferred by a simple contract — ownership of copyright is one such thing in the UK, as is transfer of land, each of which require "signed writing" rather than merely a con
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It *might* become a different discussion when the mail address is not including your name but instead something like dept.supervisor@company.com
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Here we're talking about privacy, that's an inalienable right,
I wonder if we are talking about different things? I may not be able to renounce my right to privacy, but I can certainly agree to things which, but for my agreement, would amount to an intrusion of my privacy — I can agree to let a third party read my email, for example, even if I cannot (as a matter of law) agree that I do not have a right of privacy.
I wonder if different jurisdictions come into it — under English law, I can see no problem, from a legal perspective, with someone making an i
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The Works Council was not consulted and asked the court to intervene and the court confirmed [rechtspraak.nl] such a policy is not legal.
This does not mean no monitoring is possible but it'll have to be done according to standards set up in consultation with the Works Council and by an approved counsellor.
Even then an individual might find recourse when he has good
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How interesting — I often work with my colleagues in the Netherlands on issues of privacy, and I had not realised that the Works Council was as strong in the Netherlands as you indicate here; I'd thought the concept was more focussed on Germany. We do not have a similar concept in the UK; I expect the closest we come are more area-specific unions.
In the UK, interception of communications in the course of business is governed by a particular set of regulations — comply with this (which include
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But it can work the other way around, some years ago our corporate management in the UK told IT to roll out heavily regulated internet access to virtually all personnel and they included a system whereby the logs of access could easily be monitored. The rules explicitly allowed for some private use like during lunch breaks.
There was a little icon you could c
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If I send Bob an email to his work email address, the fact that he signed such a peice of paper with his employer has no relevance to whether I own the content I created.
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The heart of this issue is whether or not Company A who was effectively paying the employees salary (through a contracting firm Company B) was entitled to have claim to anything said employee created while in tenure, even if it left the premises of Company A and was instead residing at Company B. A contract would remedy this (although there are probably better ways to deal with it from an IT perspective). No, you don't have to worry if you send an email to someone under such a contract, except for the not
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That's not what the article (or summary) says. They aren't asking for things the employee created, they are asking for the email the employee received.
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No need. Most companies have a policy that what you create on company time, with company resources, belongs to the company. Its been that way since long before Al Gore invented teh Internets.
Many companies do have exceptions allowing some personal use of their network (phone system, pads of paper, etc). But the default assumption is that it belongs to the company.
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The system where the default assumption that everything you create belongs to the employer amounts to intellectual slavery and ought to be abolished wherever it exists.
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Many countries however have have civilized laws where the company does not automatically own your work unless it was created in the normal performance of your job or on behalf of the company.
That would be stuff you did on company time and company equipment.
The system where the default assumption that everything you create belongs to the employer amounts to intellectual slavery and ought to be abolished wherever it exists.
Good luck with that. The battle being fought now is over whether the company owns what you do on your own time or not. Some enlightened jurisdictions side with employees on this one. Although non-compete company policies can still be applied. If you go home and built a better widget while your company job is building widgets, they (the company) might be able to prohibit you from marketing your invention, depending on company policies in place
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We have this extra piece of paper for you to sign; do it or you're fired. Thanks!
A condition that would make the demand illegal from the get-go and could bring the company in some very hot water :)
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That doesn't mean some people will still try and make their company in trouble. Uou would be quite surprised how people fear to go to court in some country, despites having 90% of cases ending with the company guilty ( and frankly, this is usually not cheap for a small company to pay, and even for a big one, that can be expensive enough to have a small team budget be cut, and next time you will need one more team member and this request is refused, ask you if the money was not spent for fixing someone else
I don't want to own emails! (Score:1)
I'd rather the company has all rights to my email. That way I'm not liable for anything and it all seems to make more sense anyway. It's sort of like intellectual property. If you create something for a company while being paid by the company, the company owns it, not the developer, and that it the way it has to be.
I don't see why emails are any different.
Re:I don't want to own emails! (Score:4, Interesting)
If you create something for a company while being paid by the company, the company owns it,
It's usually a little more nuanced than that.
If you are talking about copyright, where a protectable work is made by an employee in the course of his employment, the employer is the owner. However, if you create the work as a contractor, the law makes you the first owner, although you may agree contractually to assign ownership to the company.
For patents, ownership of an invention by an employee in the course of performance of his duties, where that employee's normal duties include the expectation of invention or else because the employee had a special duty to further the employer's interests, rests with the employer (although, where the invention is of "outstanding benefit", compensation may be payable to the employee notwithstanding that he is being paid to invent). Any other invention made by an employee is owned by the employee.
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I'm not sure if copyright would make much of a difference.
If understood the case correctly, the issues is that Company A forwwarded the emails to Company B that employeed their contract employee, then Company A deleted their copy of the emails. They now want to look at the emails because of a potential issue "spending irregularlities" and are demanding that the former contract employee and Company B let them see the emails.
Even if copyrighted, I don't know if that would help. As owners of the copyrigh
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Its not copyrighted unless you publish it. (Europe)
if you publish it, there are other copies out there, you can fall back to.
if you dont publish anything, its not copyrighted and your argument is invalid anyway.
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See CCNV v. Reid [wikipedia.org].
If you are in the US, or are just interested in this sort of issue and are happy with a US perspective, there's an interesting discussion in Mattioli's "The Impact of Open Source on Pre-Invention Assignment Contracts [upenn.edu]."
i see what you did there (Score:4, Interesting)
Re:i see what you did there (Score:4, Funny)
What about the other 50%?
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Having seen the content of several hundred thousand emails between employees, you do not want to own the content. It is 90% non-sense, 10% work-related and 33% "I can't wait until 5 O'Clock!"?
What about the other 50%?
The other 50% were from the accounting department.
Not so much that "emails are not owned by firms" (Score:5, Insightful)
The court did not hold that "email are not owned by firms" as such. Rather, it was a more nuanced (and, in my opinion, very sensible) ruling, albeit one which does not seem to me to extend established law very much.
The ruling essentially holds that only property is capable of ownership — an established position, although, confusingly, capability of being owned is one of the tests as to whether something is capable of being property; defining "property" is no easy task. The court considered whether an email constituted "property" or not, and held that, unless the content of an email was the subject of copyright (a property right), or else constituted confidential information, an email is not intrinsically property — an established position again, to my mind.
The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding — I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.
If nothing else, this seems to me to be a pretty common sense outcome. If employment contracts do not already reflect this position, I would expect employers to look to amending them pretty quickly.
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compare and contrast to the MegaUpload case where the US prosecuting legal team are claiming that the digital assets, even if they have copyright of the owner or are confidential, are not the property of the owner if stored on third party systems. interesting times.
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that the digital assets, even if they have copyright of the owner ... are not the property of the owner
This is correct, in my view, albeit for a convoluted legal reason. I do not own the document I have just written — rather, I own the copyright which protects that document. I do not own the underlying asset — I would say that a combination of bits is not capable of being property, at least for the purposes of English law — but I do own the copyright, being in itself a property right. All that means, in practice, is that I have an exclusive right to do certain things in respect of the unde
Re:Not so much that "emails are not owned by firms (Score:4, Insightful)
Here is an analogy: you are a guest at somebody's house, you use their ink and their paper and you write a note. The ink and paper belongs to the your host, not to you. You can claim that the message is yours, but every bit of media belongs to the owner of the house.
I see the case here, and the general principle behind it, as fully agreeing with you. The difference is that, in the case of your handwritten note, the paper and ink are capable of ownership. In the case of an email, the bits and bytes behind it are not — the email itself is not capable of ownership, and thus cannot be owned. Rather, it is the copyright subsisting in the work comprising the message which is owned. A physical world / digital world difference, to my mind, which leads to the same result.
bits and bytes, regardless of how they are stored or communicated to other computers, they are property of the company.
This is where we see a difference, I think — my view is that "bits and bytes" are not, in themselves, cannot be property, and thus cannot be owned (or else cannot be owned, and thus are incapable of being property...). Copyright is a mechanism for establishing a right of ownership which relates closely to that arrangement of bits and bytes, but does not mean ownership of those bits and bytes.
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I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.
The other point is that anytime you use company's resources to pass a message anywhere, there is liability attached to that message. Any message can be used
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I am quite certain that bits and bytes are not an ephemeral concept, they are represented physically on the media that is supplied to the employee. It takes energy to run the media and it takes space to store the data, all of the above requires support to provide uptime, etc. Every bit created and stored on hardware of a company belongs to the company.
I guess I'm not yet in that position — the company owns the media, sure. The company owns the power supplies it has bought for its servers. It may own the copyright over the document sitting, as bits and bytes, on that disk. But that does not mean, in my head, that the sequence of bits and bytes, the magnetic changes in state on the disk, are capable of being property in themselves. I can't point you to anything authoritative on that, though, other than perhaps giving you a general reference in case
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If my memory isn't failing, then this quote belongs to Cardinal Richelieu: "give me 5 lines of text written by the most honest person and I'll find a reason to hang them for it".
In fact, he refer to a old french law that basically said that writing more than 5 lines of text was illegal and that prosecurots could be hang freely. Hence his 2nd name Cardinal de Twitterlieu. This was for example why so much people died during the st barthelemy Night, etc. But after the french revolution, this has disappeared of course, replaced by a much more complex and convoluted law ( since now, it would be legal to write one ).
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Analogies are supposed to have some vague relation to the actual thing being talked about.
There was no company computer used to type in the bits and bytes.
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In Europe we have strong privacy regulation and by the time you use an account called jhon.doe@company.com the stuff you send and receive must be for... John Doe!
Now when said company would set up an account called dept.supervisor@company.com it becomes a wholly different matter.
Or do you think it's plausible mail for udanchny@gmail.com belongs to Gmail? It's got nothing to do with who owns the computer or pays for the power, it's your name
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Although I am not from the UK nor do I know if this applies but my question would be this. If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?
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If you are the one making the comment how can you not own the statement? Isn't email seen just as a written letter that one has to answer for if something derogatory or defaming said?
There is perhaps an important difference between who is responsible for what is said in an email, and who owns the copyright of the text of an email.
Let's assume that, in the process of leaving a company, I create a email summarising a piece of research I have done for the company, so that others can continue it — I've done this in the course of my employment. Within the note, I have included a message that defames my boss. I send the email company-wide. I am responsible for the defamation but, sin
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The court also held that, even where there was no property in an email, an agreement as to how something should be treated could be binding â" I can agree that I must deliver to you any email originating from you which I have on my computer, irrespective of the issue of property and ownership.
Rule 1: Corporate email is only to be used for company business.
Rule 2: All email regarding company business is considered proprietary and confidential.
Do we even need a rule 3 saying that all email belongs to the employer, at least effectively, since the above clearly imply the right to vet email to find out if you're complying with policies?
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No we do not, because it doesn't. US is a major exception to the rule that business email is not property of the employer and when it is, his rights are severely limited by privacy legislation.
US is a major exception because it has a very different concept of privacy from most of the Western world.
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It cost money to produce - it is property - or does this extend to most of the work lawyers produce not being intellectual property?
I agree with you in that I don't see a difference between email, documents, spreadsheets and so on. None of these are inherently property, existing as files on a computer. One might own copyright relating to a given document, but does not own the document itself. Spending money is not one of the tests of copyright (except in terms of a sui generis database right, which protects "investment"), but it is likely that the effort which comes from spending money is sufficient to meet the threshold.
I don't agre
right decision (Score:4, Informative)
The decision creates a potential [...] administrative nightmare for IT teams running email servers, back up and storage.
I wonder what nightmare could this decision create for IT admins... sounds like FUD to me.
I for one welcome this decision, similar legislation is in place where i live (EU - Czech Republic).
Personal correspondence belongs to the employee and employer should not be able to legaly read it without the emplyee's consent.
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I agree with this decision. These days, email is a surrogate for snail-mail sent in "the old days", and a company could NOT open a sealed/stamped letter without a court order or permission of the sender (or recipient if on the receiving end).
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I agree with this decision. These days, email is a surrogate for snail-mail sent in "the old days", and a company could NOT open a sealed/stamped letter without a court order or permission of the sender (or recipient if on the receiving end).
When I pay you to: sit in my chair, at my desk, in my building, and use my pen to write on my paper (letterhead bearing my name and address), seal it in my envelope, and attach my stamp to it, write the return address of my building on it, hand it to the person I am paying to collect and distribute papers for me, and they take it (along with many other documents I paid you and others to create) to the postal distribution center, and hand it over to the postal authorities to deliver...
Am I entitled to know w
Re:right decision (Score:5, Funny)
No nightmare. From my standpoint it would make my life as an admin easier.
Employee: "Hey. I lost this email from so and so a while back"
Me: "Oooooo... Ya. Sorry about that. We don't back your email up. We only backup company data."
Employee: "Hey. I keep getting spam."
Me: "Sounds like a personal problem to me. It's your email. Fix it."
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If personal correspondence is using the company account it isn't so personal. If the employer blocks access to external mail accounts then maybe there is a reasonable claim that content is personal, but barring that it seems like it should be the company's property.
While on the clock... (Score:1, Interesting)
Most emails written using a company's email system are done while on the clock. This makes these emails property of the company in my opinion.
The company I work for also required that I sign a system access agreement, which includes that anything created (including emails) are the properly of the firm, period. Doesn't matter if you're killing time between calls to write lyrics to the song, technically those lyrics belong to the company if they're written using a firm-issued computer connected to the firm'
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Most emails written using a company's email system are done while on the clock. This makes these emails property of the company in my opinion.
Assuming that the email in question meets the threshold for copyright protection, and are created in course of employment, then that's probably true. But if I reply to your email with "lol," I'd argue that this creates nothing which is capable of being owned — in particular, no copyright, unless it was a particularly unusual situation, which is the most likely mechanism for establishing a right of ownership.
Re:While on the clock... (Score:4, Insightful)
So you are saying that if I write an email on my company's time then that email is the property of my company? Thus if I send that email to your work address then it is still the property of my company and hence your company has no legal right to a demand another copy of it.
So you are agreeing with the judge's decision.
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Okay, I'm guilty of not RTFA
What a difference (Score:3)
The key (Score:3)
I know for sure that my employer saves all employee emails and instant messages for some predefined amount of time. Had they done this - which I'm assuming should be standard practice for any corporation - they wouldn't have needed to try and access this dude's personal email account.
Mismanagement... but I guess they already knew that since they had let their CEO go.
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So no one is allowed to use any forwards at all?
Or you just review all forwards to make sure none leave the domain? How do you prevent someone from using something like imapsync or fetchmail or similar tools that behave like normal clients?
We only preserve messages for certain classes of employees here. We do have email backups, but we do not archive all email for execs which was a business not technology decision. We are not a publicly traded company.
Less problems if... (Score:1)
Sometimes the line is so thin.
My policy when assigning mail addresses to my users is as simple as NEVER using user's given names. I create sales@, techserv@, invoicing@... but never JohnSmith@...
If the user's name is part of the email address (personalised email addresses), that user can pledge that the company gets direct benefit from this user's image/prestige/call what ever you want to call it: you implicitly give the ownership of the account to that user. Generic accounts have no owner. Same policy for
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How do calendars work then?
Lets say a sysadmin needs to meet with VP of operations. Do all the sysadmins get the invite? Do you have sysadminA, sysadminB and sysadminC accounts? If you do you are right back to redirects.
This sounds like it could only work for an incredibly small company.
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There is the other half of the email address, which denotes the link to the actual company. Is it for a person who is presently @ a location, or is it a company currently represented by a person?
Legal Discovery Proceedings (Score:4, Interesting)
How the hell do you do legal discovery data mining on email if it isn't the compan's property? This would be quite a mess for US companies trying to defend themselves.
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When you get an email account from your ISP, even if the email is stored on their servers, they don't get a right to the content.
Despite this, they DO actually manage to make backups, run the email servers and all that jazz.
So, where's the problem here?
ISPs aren't responsible for the actions of their customers in the same way that a company is responsible for the actions of its employees.
Of course, ultimately, the problem is caused by a growing, parasitic legal system, 'legislate to fix everything' governments, and large corporations with large legal departments who are happy with the disproportionately chilling effect of compliance regulations and defending against endless stupid lawsuits upon their smaller competitors.
Ownership of information is a metaphor (Score:2)
You can't just go ahead and discuss ownership without defining what you actually mean by that. Normally when talking about information it's a shorthand for owning the copyright, but there are also cases where you "own" a license to play an MP3 file, etc., but you do not own the copyright.
The discussion here seems to be about access:
Fairstar claimed that it automatically deleted the emails that it forwarded through its servers to Adkins' Cadenza account when he worked as chief executive.
But Justice Edwards-Stuart ruled that the company had no right over the ownership of the email content and therefore rejected Fairstar's request for an independent inspection of Adkins' emails to take place.
If they discuss copyright ownership , and the business owns the copyright for the emails, there's no law that says that someone has to give me back my copyrighted work if I lose
Its quite logical... (Score:1)
Its actually quite a logical interpretation.
If I send you an image who owns the image? What if I send an email via another mail server.... does the intermediate mailserver own everything passing through the server? What if there were no people involved in any of the mailservers and every machine was randomly mailing the contents of random sequence of bytes... Who owns the random sequence of bytes? What if the random sequence just happened to match, exactly, a music album? All of this is a philosophical