Sunday, July 27, 2008

Email Privacy?

In the previous post I pointed you towards a blog post which published an email exchange that had been conducted in private. This caused me to ponder the implications of publishing a private exchange, in public, on the internet, for all the world to see. Is it ethical? Is it legal or is it not? I decided to do some research to try and find the answer. Here is some of the information I came across:

Copyright on the Internet by Franklin Pierce Law Center:
"Notice on individual email messages (if blanket notice is not provided, say, in a welcome message) may also be useful. Something as straight-forward as "Please do not forward this message without permission" should be legally adequate as well as honored by most recipients. It is hard to see much advantage to traditional notices."

5 Rules of Forwarding Emails
"keep in mind that if you are forwarding a private email that was sent to you, you must get the sender's permission to forward it on to others (or post it publicly). Emails are copyright protected by their authors. Not only that, common courtesy dictates that you should ask the author first if the email sent for your eyes only can be forwarded to strangers or others for which it was not originally intended."

Forward an email, get sued? by Overlawyered.
"The mere act of forwarding an email or posting an exchange to a website is grounds for legal action, according to University of Arkansas law professor Ned Snow. In a paper to be published in the Kansas Law Review this summer, Snow contends that one of the most common acts of the digital age is a violation of privacy and warns that our courts are running headlong into this issue."

E-mail is not copyright protected once it is sent by
"E-mail is a written work that once created is copyright protected by the author. This means you cannot post publicly an e-mail sent to you privately. You cannot post private e-mails to your site, to message boards or to your blog without the author’s specific permission to do so.
Just because an e-mail was sent to you as a private communication does not mean you then own it and can do with it what you like. In addition, e-mail that is posted to a group of people, on a mailing list or Newsgroup does not make the e-mail available for reposting, copying, or any other use - not without the express and written consent of the author.

A Copyright Conundrum: Protecting Email Privacy
by Social Science Research Network
"Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright"

Who owns email copyright?
by ask metafilter
"You own the copyright on anything you write. But it will be very hard to claim damages (that is, how much money have you lost because the email was made public).
I suspect that you are more upset about the information in the email (or the fact that you said these things) becoming public, rather than the specific wording of the email. Copyright does not protect you against this type of revelation. If you did not have a confidentiality agreement with the recipient of the e-mail, then they are free to reveal this information.
Unless the e-mail contained something you planned to publish, and now you have lost potential income, then I don't think the copyright approach will work out for you.

Fair Use
by Citizen Media Law Project
"Fair use, which is now a part of the Copyright Act itself, is defined in the Act as follows:
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Clear as mud?!

This Post was written by Sam from Becks & Posh


melissa said...

Sam, thank you for the extensive post on this. It is something another commenter brought up to me and I have considered it. I am loathe to remove the actual email, for now, and I would hope if it is ever found again by ATK/CI/CC (or Deborah herself) that I would receive a cease and desist notice prior to any other action.

Thanks again for this and for your post below. I plan to post a follow-up today.

Regards, from a long-time admirer~

Anonymous said...

To my mind, none of these descriptions precisely meets the case. The crucial point at stake here is that the blogger is, in fact, a blogger. Her job -- unpaid, probably, but that doesn't matter -- is to report as news what happens to her, what she thinks, and so on. She may not do this in such a fashion as to give away freely information that is in fact protected by copyright, patent, or whatever, and she may not expose other people to invasions of privacy such as would be ordinarily expected. So, for example, as we know from a recent big lawsuit in Britain, she cannot publish nude photos of someone she happened to spot, or even her friends, unless they gave explicit permission; the point is that they would ordinarily expect privacy in this matter.

But what was published here was an email exchange between one publisher of culinary information and another. If the first publisher (CI) feels that its behavior would not be acceptable in public, then it should not engage in it -- this is not a private individual. The question at stake is only whether CI has proprietary rights to certain information; it cannot expect that a threat of legal sanction (which is what those emails were) made in an unsecured medium would necessarily be strictly private.

As to a cease and desist notice, I doubt very much that it could be made to stick. CI would have to argue that its private information has been leaked when it had an ordinary common expectation of its remaining private. All Melissa has to say is, "um, I'm a blogger, right? You've seen blogs -- oh yes, you have, you have interns looking at hundreds of them. So you do know what we do, right? Did I publish something falsely? Did I promise you privacy? Or is it perhaps that you have sent me something that you now don't want to stand by?" I suspect CI, if it engaged a lawyer, would be told to suck it up: they just might win, who knows, but it would be a pretty Pyrrhic victory.

Think of it this way: all she has to say is that a blogger is, at base, a journalist. She made no secret of who she is or what she does; indeed, it is precisely that she does this which prompted the whole issue. If you tell a journalist something, and you do not get that journalist to say, "yes, this is off the record, don't worry," that information can now be published. If you are at a radio station for an interview, treat all mikes as live. If you are emailing a blogger, say nothing you wouldn't want to read in the paper without careful and explicit defense in advance.

Anonymous said...

It seems to me that issue rests on the phrase "fair use". I've read the definition multiple times and can't see how Melissa has violated or infringed on any email copyrights.

Melissa published a recipe that appeared free on the CC website. She attributed the recipe to them, (though after changing 4 of 10 ingredients I would argue it resembled the original no more than it resembled any of a 1000 others). Melissa was contacted by CI citing her "violation" of a published reproduction policy. Her interaction with CI over their enforcement of their PUBLIC policy is of public interest.

To me, the key phrase in the "fair use" definition is, "for purposes such as criticism, comment...". Any reasonable person would assume that visitors to a food website might try some of the posted recipes. Furthermore, a reasonable person might expect that a reader would share his/her experiences with a particular recipe with other like minded people. In my opinion, the publishing of the recipe, her subsequent interaction with CI and its potential impact on other users, raises the revelation of CIs' emails to "fair use".

Indeed, that phrase "for purposes such as comment, criticism...", could pertain to the original post of the recipe as well.

"Fair use" seems to fall into that legal netherworld of a term like "obscenity". We all know it when we see it, but it's virtually impossible to write a definition that works ahead of time.

Sam said...

I tried to present the facts objectively. Any of us can surmise as to what might be common sense, or what we *think* is morally correct, but we are all going to have slightly different opinions on that.

I tried to find out facts about the law, which is the information I rounded up on this post.

I am no legal expert, but what I take away from what I read is that due to copyright laws you should not publish or forward emails without the consent of the originator.

That said, the email exchange in question is not one which has any artistic merit so it is unlikely that the originator would be able to sue based on loss of earnings for what was published.

What is less clear to me are the fair use/libel/slander implications. I imagine there are some, but from what little I have read, I find it difficult to come to a conclusion about who is wrong/right in this instance.

Nate-n-Annie said...

You could say, though, that the publication of the email exchange has resulted in a financial loss for ATK/CI/CC. Many of the comments to the original post were of people declaring they would not start or renew their subscription, based on the negative impression they got from the exchange.

I think Melissa should have replied one final time to Deborah, saying that she would post the exchange unless she heard otherwise. said...


First off, thanks for all the legal effort. It's not my area of expertise, though from the wording in some of the anonymous posts it may be for those posters.

If I understand the excerpts correctly, (and I'm sure I don't), you always have copyrights over your emails, unless someone can claim a "fair use", which then means you no longer control the privacy rights of that email. Is that it?

Another question I have is whether a corporation can claim the same privacy rights? The PR person was acting on ATK/CI's behalf, I don't know if a company can claim the same rights an individual can.

Anyway, nothing like a good old fashioned flame war to perk up the day and clear the air.

Thanks again for all the work.


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