Just what we need: more causes of action. If you’ve ever wondered why this country is overlawyered — besides greed and lack of personal responsibility, I mean — you might want to look to our law schools, where law professors with too much time on their hands spend some of it thinking of new ideas for increasing litigation. The latest example, from Fortune.com’s The Browser:
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.
But don’t worry; Snow’s only trying to help:
His paper is a result of that curiosity, and he’s hoping it will serve as a roadmap for the courts in an issue that is bound to come into the spotlight. “Most of the time, when you forward emails, there’s no harm. But when you can show the harm, there’s reason to go to court,” he says. “I’m trying to offer insight to the courts, who will be grappling with this issue.”
And if there’s big money to be made somewhere along the way, well, I guess that’s just the price we all have to pay.
6 Comments
I just read about a case in England, which apparently also said that forwarding an email could be actionable – for copyright violation.
Is there anyone left not living under a rock who believes that an e-mail they send is somehow a private affair?
When one sends an e-mail, like snail-mail, parcel post, UPS Fed-Ex, walkie-talkie, or other means of communication, there is never an expectation that the recipient will not repost the item in any manner they see fit (unless constrained by prior private contract between the parties communicating).
Under current US copyright law the second you create something it is copyrighted. While you do need to file the form and send in the money to be able to sue for damages etc, The fact remains that it is considered copyrighted the second it is created.
I strongly disagree with nevins comment. On the contrary, both normal rules of social protocol and copyright law create an expectation that the communication will be used in some ways but not others.
A private email sent to one person should not be posted to a public list. That’s a violation of reasonable expectations of privacy. An email sent to a public list can probably be forwarded to another public list or archived. (According to reasonable expectations, whether or not the law allows it is another question.)
There’s a large continuum. Forwarding an email can be reasonable or unreasonable, even in the absence of any prior agreement between the sender and recipient, depending upon the contents of the email and how large a distribution the sender originally reasonably expected.
Just to be clear to Bill and David: this professor is arguing for a cause of action beyond any claim for copyright infringement. (He recognizes that a lawsuit for copyright infringement is almost certainly hopeless, because emails are unlikely to be registered with the copyright office, which means that the only damages one can obtain are actual damages. And since it’s unlikely an email has any market value, the suit is worthless.)
Exactly, he’s talking about a violation of privacy. The copyright issue is relevant for a reason beyond damages — if you can show that the forwarding is a violation of copyright law, the argument that it was unreasonable and violated your expectations is virtually a slam dunk.
And I think it’s obvious to anyone who sends emails that a private email send by one person to another that contains content solely intended for that recipient is accompanied by an expectation of privacy and one that society accepts as reasonable.