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Case Law: Employers have no claim to property in e-mails or the content of e-mails sent by employees from the employer’s email accounts

Confidential information — Breach of confidence — Employment — Claimants seeking injunction requiring former employees to forward copies of e-mails received whilst employed — Whether e-mails and/or their content claimants’ property — Whether claimants entitled to relief

Capita Plc & Anor v Darch & Ors, Court of Appeal – Chancery Division, May 26, 2017, [2017] EWHC 1248 (Ch)Capita issued a claim, alleging that the Darch, their former employees, had acted in breach of express and/or implied terms of their contracts and also that they had acted in breach of confidence by extracting, receiving and misusing the Capita’s trade secrets and confidential information and infringing Capita’s rights in its database.

Capita issued a claim, alleging that the Darch, their former employees, had acted in breach of express and/or implied terms of their contracts and also that they had acted in breach of confidence by extracting, receiving and misusing the Capita’s trade secrets and confidential information and infringing Capita’s rights in its database. Capita sought damages and delivery up of all documents and other records belonging to them. Capita applied, for an order requiring that Darch forward to their lawyers’ copies of all e-mails that they had received into any personal e-mail account from Capita’s e-mail accounts.

On the application and the question whether an employer had a claim to property in e-mails or the content of e-mails that were sent by employees from the employer’s email accounts, it was held that the e-mails and/or the contents of the e-mails were not the Capita’s property. Accordingly, they were not entitled to the relief sought.

Full case can be found here

Intelligent search in legal Knowledge Management

CaptureSearch is vital in the modern law firm. The ability to find information quickly and efficiently contributes not only to business success but also to work satisfaction. We’ve all been frustrated at some point when we’re looking for a case, or a research point but no good leads show up. On close of business, it’s much more satisfying to look back on a productive day where you actually finished a project instead of contemplating a day where you found yourself constantly impeded by the lack of necessary information and your productivity diminished by fruitless searching.

Pre-internet, pre-web, pre-mobile…..pre-everything!

In our youth, the only recourse was a set of encyclopedias our parents had been cajoled into buying. We would drag out the large, heavy books just to clarify that Rome is the cap­ital of Italy.

Today, of course, there’s no need to pull a volume of an encyclopedia off a shelf or even leave the room to find answers. In much more subtle fashion, you can simply look down at your phone to search for answers to factual questions. Google and Wikipedia have certainly redefined what it means to search. However, we tend to search because it is easy to do so. A primary reason for Google’s phenomenal success is its vaunted ease of use. Typing relevant keywords is enough to quickly get meaningful results – why bother with hard texts when you can get answers online? Why do physicians not use medical literature, rather than relying on the drug company salesman for information about a new drug? By no means do I imply that fast and easy is best. But only that fast and easy is often “good enough”.

Search has gone mainstream. People search sports and entertainment or to locate a retail store or book a hotel. The reality is that the simplistic notion of search does not carry over particularly well to finding information essential to doing your job.

Who cares?

Recently a colleague reached out to me looking for reading material in a certain area of law. The topic was from a 1942 case. Her issue was that she didn’t just want the 1942 case; she wanted 5 recent cases that reported on the topic, as well as articles. Her initial searches did not yield anything relevant, not even the 1942 case; and she’s not alone. Many lawyers find themselves frustrated when they can’t find the desired information in an immediate way because of how current search applications are designed. They involve typing keywords into a search engine via a browser, at least with respect to online resources outside the firm. Further, internal search applications are complicated by the need to search both structured and unstructured material and the fact that an internal search platform is either non-existent or relatively user unfriendly as compared to the internet.

Certainly the integration of search into the daily lives of most people supports the argument that while search is important to what we do, it certainly does not lead, without more, to anything like a competitive advantage, either personally or for your employer. Why? Because everyone is doing it (perhaps not skillfully) – moreover as more millennials enter the workforce, many have been doing it for quite some time.

But as a Knowledge Management strategy, search is not a “one off” tactical activity whose goal is to find pieces of information and call it a day, but rather a more strategic activity whose objective is to add search results to an evolving and organic narrative around an area of law. It is the ability to plug search results into a narrative, one that provides a holistic context.

Despite the enabling technologies now available, implementing a KM strategy that is viable and market differentiating remains a challenge because of the 3 Ps; people – which requires changing employee thought patterns and behaviours, process – the creation, maintenance and usage of a knowledge base (that is how the initiative is actualized) and the platform – the set of technologies that is leveraged in the actualization and its inherent characteristics such as accessibility, availability and reliability.

The legals on phone tapping and personal data

Last Friday media reports suggested that the Communications Authority of Kenya(“the CA”) intended to roll out an application called the Device Management System (DMS) capable of tapping into a mobile phone carrier’s network enabling the CA to access personal information from people using that carrier’s network. The CA clarified that it intends to curb the proliferation of counterfeit devices by identifying and isolating those devices and denying them access to services and not collecting a subscriber’s personal information. Despite this, questions as to data protection for the rest of the users of the network have arisen.

Current position

It is well known that phone tapping, surveillance and interception of communications violates the right to privacy (see Kennedy vs Ireland (1987) I.R 587 and Coalition for Reforms and Democracy (CORD) v Attorney General Petition No.630 of 2014.)

There are two bases to challenge this phone tapping.  Firstly, the Constitution provides that every person has the right to privacy – which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed.

The Constitution grants every person the right to institute court proceedings when his/her fundamental right or freedom, such as the right to privacy as described above, has been denied, violated, infringed or is threatened.

The Kenya Information and Communications Act (Act no. 2 of 1998 (as amended)) (“KICA”), provides that the Cabinet Secretary in charge of  Information and Communication has the power to make regulations in relation to a telecommunication service and specifically, to make regulations on the privacy of telecommunication.

Pursuant thereto, the KICA Consumer Protection Regulations require that a Customer has a right to personal privacy and protection against unauthorized use of personal information and specifically restricts a telecommunication licensee from allowing any person to monitor or disclose the content flowing through their system.

Further,  the KICA (Registration of Subscribers of Telecommunication Services) Regulations bars the sharing of subscriber data by mobile providers without the express authority of the affected subscriber.

Conclusion

The current legal position in Kenya is that any person, including a public entity, collecting personal information has to abide by the Constitutional provisions of the Right to Privacy and the KICA regulations on consumer/customer protection.

Consequently, it appears that there would be good grounds to challenge the tapping of the carrier networks by the CA. For now the High Court has granted orders stopping the implementation of the CA directive ordering that it be heard on March 6 2017.