I have been advising recently on a potential claim relating to “ownership” of data, where a company outsourced some of its administrative functions and now, due to a perfect storm of a poorly implemented subcontracting arrangement, and an insolvency, it now has no contractual right to obtain its data from the storage provider ultimately holding the data relating to the outsourced functions.
There are plenty of lessons to be learned from this scenario but for this post I’ll comment briefly on ”ownership” of data or information because last month, in an entirely unrelated data-related kerfuffle, the Technology and Construction Court refused an application made by Fairstar Heavy Transport to require an individual (its ex-CEO) and a cloud storage provider to hand over emails which had been forwarded to the ex-CEO’s service company’s email address, meaning that responses had not reached Fairstar’s servers. Worse for Fairstar, the forwarded emails were apparently automatically deleted from Fairstar’s servers. It was thought that the emails contained information important to Fairstar in respect of a different dispute involving a Chinese shipyard.
The application was made on the basis that Fairstar had a proprietary claim to “ownership” of the content of the emails – in other words, that Fairstar owned the content of the emails as property. Other legal issues prevented Fairstar from making other possible claims such as contractual “ownership” or an intellectual property claim – primarily that Fairstar was seeking to avoid enforcing the ex-CEO’s service contract for other reasons.
The judge dismissed the application after a review of the relevant case law, which he noted suggest strongly that in English law there is no general proprietary right in content or information. It’s a timely reminder that, despite increasingly expressed views that “the data belongs to X”, legal rights in data and information are less robust, and more complicated, than one might think. Various intellectual property rights may potentially exist in a data set, or an email exchange, depending on the circumstances, and the use of data or information provided by one party to another might be limited by contract – but don’t simply assume that “it’s our data”: it might not be that straightforward.
