Whose Outlook

August 06, 2007

In the case of PenWell Publishing (UK) -V- Isles 2007, the High Court heard that Mr Isles was employed by PenWell in 1997 as a publisher and conference chairman. After joining, he uploaded his personal and previous business contacts list onto PenWell's email system. The contacts list was updated with new contacts during Mr Isles's employment.

Despite PenWell having an email policy stating that its email system was only to be used for business purposes, this policy was not mentioned in Mr Isles's contract of employment.

In 2005, Mr Isles decided to leave PenWell to set up a competing business. Shortly before resigning in 2006, he downloaded his entire contacts list from PenWell's computer system. The contacts list included Mr Isles's contacts he had made prior to coming to PenWell. PenWell sought a High Court injunction to prevent Mr Isles from using the entire Outlook database and sought its return to PenWell.

Mr Isles argued that the contacts list was his own personal information and he had compiled much of it prior to joining PenWell.

The High Court decided that the contacts list belonged to PenWell and ordered its return, as well as a prohibition on the use of its content by Mr Isles. The court justified this harsh decision by its finding that, although the list contained personal and business contacts that pre-dated employment with PenWell, it also contained a large number of contacts that Mr Isles had used or added to during his employment. However, had Mr Isles kept his contacts in a separate private address book, he could have taken them away.

The case arose because PenWell did not put the ownership of the contacts list saved on its Outlook or other similar software beyond doubt. If the contract of employment had clearly stated that all client contact details saved on its computer systems belonged to PenWell, then the position would have been clear. PenWell would have ownership of all the contacts, even those Mr Isles brought to the company when he joined. On the other hand, if Mr Isles's contacts had been saved in distinct files for personal and business contacts lists, the position would also have been clear; only the business contacts would have belonged to PenWell. This case had to untangle a situation where the contract of employment was silent and the contacts list was a mixture of both personal and business contacts.

The judge said it is "highly desirable" for employers to set out their policies in this regard clearly and communicate them to employees. This is best done in contracts of employment which should set out who owns the information created on the employer's computer system, including the contacts lists.

This article should be read in conjunction with our story on access to employee's email and computer systems of 18 August 2006 (Sharma News archives' on our website).



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