Who owns your emails? Are they property?

Oswal v Carson involves an application for an interlocutory injunction by the wife of the former managing director of a company in receivership to restrain the receivers having access to her emails hosted on the company’s server.  Mrs Oswal alleged that the emails were her property and did not relate the business of the company.

The plaintiff submitted that there is a serious question to be tried on the question of whether the plaintiff’s emails sent and received were documents which were owned by her. Merely because the data was stored on the company’s servers or on other computer equipment did not mean that the company owned the data. It was submitted that the emails are not Charged Property and therefore cannot be managed, controlled, possessed or accessed by the receivers…

First, senior counsel for the defendant did not concede that the “zeros and ones” (using his words) on the database comprising the emails constitute property or property of the plaintiff. In particular, senior counsel directed my attention to the plaintiff’s statement of claim, specifically paragraphs 4(a) to 4(c) inclusive in which the plaintiff seeks to make out a claim to protect allegedly confidential information without specifying the content of the confidential information. It was submitted on behalf of the defendants that it is not open to make a global claim of confidentiality.

It was submitted by counsel for the receivers that Mrs Oswal had shifted ground to focus on the issue of ownership of documents rather than whether they were confidential or privileged.

The Court considered the company’s IT policy which provided that all emails should be considered company information.  Counsel for Mrs Oswal submitted that she was not an employee or contract of the company and has no knowledge of the IT policy.

On the question of prejudice, senior counsel for the defendants submitted that any hurt or loss from disclosure of private material could be compensated for by an award of damages for any loss or damage which might result to the plaintiff personally or to the plaintiff’s restaurant business. Whilst courts are equipped to make assessments of loss and damage of this kind, this would not be a complete remedy in this case. If the receivers were to have access to the emails, the plaintiff would, for practical purposes, be denied the right to assert that they are not properly part of the Charged Property and should not be accessed at all. In my view, this would constitute significant prejudice and would cause injustice to the plaintiff.

The Court granted the interim injunction, stating that –

In my view, in this finely poised matter, the course which appears to carry the lower risk of injustice is to grant an interlocutory injunction to maintain the status quo for a very limited period to enable the plaintiff to have an expedited trial on the preliminary question of ownership of the emails. The injunction will last only until the trial of that preliminary question or further order.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/70.html

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