London's  Technology and Construction Court has recently found that a company did not own the emails of its former Chief Executive Office, even though they were work related.

The case turned on its own facts, one of which involved the senior executive sending and receiving company emails using private or non corporate accounts and servers.

The physical storage of the emails was what caused the problem.  At a practical level, the emails were not on the employer’s servers.  Some had been sent using the executive’s private account (and therefore held on external third party servers), others had been sent from a work server, but copied to the personal server and, thereafter, deleted from the employer’s server.

Access to emails is often an important management tool, which facilitates good and proper administration, in relation to the affairs of a business, but, also, is important in corporate negotiations and, potentially, disciplinary matters.  In those circumstances, it is important to ensure that emails of a work nature are sent and received using company facilities and not by utilising private or non corporate accounts and servers.

In Australia, it is likely that the outcome of the case would have been the same if the Court was only asked to consider the ownership of the email, or, more correctly, the content of the email.  It is possible that, if the contract of employment contained information providing for assignment of all intellectual property developed by the employee to the employer, then the employer would be able to establish that it owned copyright in the emails (but, it is not as clear as to whether that would entitle the employer to possession, or inspection, of those emails).

A lesson for businesses is to ensure that all work related emails are issued to and through the work system and personal or external servers, are actively discouraged.

In any litigation it is likely that access to emails held on third party servers may be available through the issue of a subpoena, or through discovery, however, it is clearly better to avoid this situation and to ensure that employees, and particularly senior management, are discouraged or prohibited from using third party servers for work related matters.