Case Report – Employer owns mixed contact list stored on its system

29 Sep

In this United Kingdom departing employee case from this June, the High Court held that an employer had exclusive ownership of a contact list alleged by an employee to be his personal contact list because it was maintained on its computer system.

The defendant was a journalist who worked in trade publication and conference buisnesses for a number of years before joining the claimant, who operated a similar business. He gave evidence that he maintaned a personal contact list, updated it from time to time, and had over eight years of editorial and industry contacts amassed when he commenced employment with the claimant. Nine years later, and after transferring the list to an MS Outlook database maintained by the claimant and adding work-related contacts, the defendant left with two other employees to start a competing business. In addition to suing to recover damages for the defendant’s pre-departure breach of loyalty and fidelity, the claimant disputed his ownership of the list.

Although it held that the company had not effectively incorporated its computer use policy into the defendant’s contract of employment, the court nonetheless found it had exclusive ownership of the list. It made the following broad statement:

I am satisfied that where an address list is contained on Outlook or some similar program which is part of the employer’s e-mail system and backed up by the employer or by arrangement made with the employer, the database or list of information (depending whether one is applying the Database Regulations or the general law) will belong to the employer…

In all those circumstances, I find that such lists will be the property of the employer and may not be copied or removed in their entirety by employees for use outside their employment or after their employment comes to an end.

Because this is not likely to be appreciated by many employees, it is in my judgment highly desirable that employers should devise and publish an e-mail policy…

In the absence of such a laid down policy, I next have to consider the status of contact details which have been put on to an employer’s system by an employee for their own use outside their employment, in ignorance of the fact that they would thereby become part of the Claimant’s property…

In my judgment it is reasonable to imply in the absence of any laid down guidance a term that an employee will at the end of their employment be entitled to take copies of their own personal information and, where the information is person [sic.] and confidential to them, such as details of their doctor, banker or legal adviser, to remove them from the employer’s system.

Most forms of e-mail system will permit the creation of compartmentalised address books, so that ordinarily an employee will be able to put their own personal contact details of friends, relations, and the like into a personal address book. In those circumstances, in the absence of clear evidence of an e-mail policy, I would be inclined to the view that ownership of that part of the database resided with the employee…

In assessing the facts, the Court held that the defendant copied the entire mixed list for the purpose of competing with the defendant and that it would not be appropriate for it to parse the list. It ordered the sequestered database to be delivered up to the claimant and enjoined the defendant from using it except for contact information “known by other means.”

Pennwell Publishing (UK) Ltd v. Ornstien, [2007] EWHC 1570 (QB).

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: