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With the click of a mouse, information can be automatically sent through the cyber world to anyone who is online. When an e-mail is received it can just as easily be forwarded to numerous parties. Several reports have suggested that more than 5 million e-mails are sent around Australia each day.
Recent amendments to copyright and privacy laws have sparked media reports that the simple act of forwarding an e-mail may breach the Copyright Act 1968 (Cth) or the Privacy Act 1988 (Cth).
Copyright
The amended Copyright Act defines "communicate" as "making available online or electronically transmitting" a work or subject matter. This new communication right granted to copyright owners encompasses the use of e-mail. It is, however, a fallacy to think that changes to the law have altered the legalities of forwarding an e-mail message. The position at law remains substantially the same as it was when e-mail was in its embryonic stage.
The current position is that copyright may subsist in an e-mail message if it has a sufficient level of originality. Therefore, the forwarding of an e-mail, without consent from the author may be a copyright infringement. The creator of the e-mail may not necessarily need to create a unique level of literary or artistic work to ensure sufficient originality.
An e-mail may be considered original if the author has expended intellectual effort and the content is not already in the public domain. Once it is established that the e-mail contains a sufficient level of originality, the threshold question is whether the sender has given the recipient authorisation to forward the e-mail to third parties. A consultant firm or other advisory professional organisation which sends opinion-based advice to clients via e-mail is likely to retain the copyright in the e-mail's content. Copyright infringement may result if the sender's client forwards the e-mail to a third party without the sender's consent.
Forwarding of certain e-mails may be permitted under an implied licence from the e-mail copyright author. Personal e-mails such as anecdotes, jokes, gossip, casual exchanges are not likely to have sufficient originality to be protected by copyright laws. When forwarding an e-mail, the issue arises as to whether to delete the details of the original sender from the body of the e-mail message. Removal of such details may, in the relevant circumstances, be evidence of copyright infringement.
E-mail recipients should pay attention to copyright notices and prohibitions contained in e-mail disclaimers. Conversely, senders of e-mails, particularly e-mails containing copyright material, should attach clear and express notice of this fact.
In addition, precautions must be taken by employers to restrict use of e-mails by their employees. The general position at law (in the absence of any contrary provision in an employment contract) is that an employer owns the copyright in e-mails sent by employees during the course of their employment. It is advisable that employers implement written e-mail policies and incorporate disclaimers on outgoing e-mails to avoid potential risks and liabilities that may arise from use of their e-mail facilities by employees.
Privacy
Forwarding an e-mail containing personal information of another person may breach Australian privacy laws. The Privacy Act now applies to most private sector organisations, as well as public sector agencies. The legislation however, excludes small businesses (annual turnover of AU$3 million or less) for a period of 12 months after the commencement date.
The new privacy laws restrict the way in which businesses collect, use, disclose and store personal information to such an extent that in some situations, forwarding an e-mail may amount to a breach of privacy. The laws will be assessed on a case-by-case basis and will apply where the original e-mail contains personal or sensitive information of the original sender, such as data relating to religious or political opinions.
It is most likely that you, as readers, will be e-mail users and subject to the application of copyright and privacy laws. The development of the Internet age, and the ease and commonality within which e-mails are transmitted means that in many instances there will be an implied licence from the sender for the recipient to be able to forward e-mails. However, this may not always be the case and we recommend that caution be taken, particularly where the e-mail contains original or personal information.
Jeremy Szwider is an IT lawyer at Phillips Fox. He can be contacted at jeremy.szwider@phillipsfox.com.
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