It is no surprise that the use of email as a means of communication is now commonplace in our digital environment.
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).
The amended Copyright Act defines -communicate" as -making available on-line or electronically transmitting" a work or subject matter. This new communication right granted to copyright owners encompasses the use of email. It is, however, a fallacy to think that changes to the law have altered the legalities of forwarding an email message. The position at law remains substantially the same as it was when the email sensation was in its embryonic stage.
The current position is that copyright may subsist in an email message if it has a sufficient level of originality. Therefore, the forwarding of an email, without consent from the author may be a copyright infringement. The creator of the email may not necessarily need to create a unique level of literary or artistic work to ensure sufficient originality.
An email 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 email contains a sufficient level of originality, the threshold question is whether the sender has given the recipient authorisation to forward the email to third parties.
A consultant firm or other advisory professional organisation which sends opinion-based advice to clients via email is likely to retain the copyright in the email's content. Copyright infringement may result if the consultant's client forwards the email to a third party without the sender's consent.
Forwarding of certain emails may be permitted under an implied licence from the email's copyright holder. Personal emails such as anecdotes, jokes, gossip, and casual exchanges are not likely to have sufficient originality to be protected by copyright laws. When forwarding an email, there is often a quandary of whether to delete the details of the original sender from the body of the email message. Removal of such details may in the relevant circumstances be evidence of copyright infringement.
Email recipients should pay attention to copyright notices and prohibitions contained in email disclaimers. Conversely, senders of emails, particularly emails containing copyright material, should attach clear and express disclaimers.
In addition, employers must take precautions to restrict use of emails 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 emails sent by employees during the course of their employment. It is advisable that employers implement written email policies and incorporate disclaimers on outgoing emails to avoid potential risks and liabilities that may arise from use of their email facilities by employees.
Forwarding an email containing personal information of another person may also breach Australian privacy laws. This is particularly important considering the recent amendments to privacy laws. From 21 December 2001, the Privacy Act will apply to most private sector organisations, as well as public sector agencies. The legislation, however, will exclude small businesses (annual turnover of $3 million or less) for 12 months after its commencement.
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, the forwarding of an email may amount to a breach of privacy. The laws will be assessed on a case-by-case basis and will apply where the original email contains personal or sensitive information of the original sender, such as data relating to religious or political opinions.
It is most likely that this magazine's readers will be email users and will be subject to the application of the new 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 forward emails.
However, this may not always be the case and we recommend that caution be take, particularly where the email contains original or personal information.
Jeremy Szwider is a solicitor at Phillips Fox. He can be contacted on 03 9274 5233 or at jeremy.szwider@phillipsfox.com
