Legal Issues of Posting E-mail Correspondence on Blog

My question is simple:

If someone takes private email correspondence and, without asking permission, posts the other person’s email message to a blog, what is the legal status of that content? Does the person who has not granted permission have a legal case to bring against the person who posted the content of the e-mail message?

Comments

  1. plagiarismtoday says:

    Alright, when you’re dealing with email that is being posted to the Web, there are two issues that come up. Copyright and privacy.

    There is little doubt that you have copyright protection over your emails. Since it is a creative work and it is fixated into a tangible medium of expression, you hold the copyright interest in anything you send via email.

    However, by sending it via email, you offer a certain implied license for the other person to use that material. That implied license extends to any copying that would be a foreseeable and natural outcome of you sending the email.

    For example, you can’t send someone an email and then complain that they copied the email by pulling it down from their server or copying it when they reply to you.

    However, most seem to agree that the above implied license does not extend to posting it on the Web. By sending you an email, I have no reason to assume that it is going to be posted on your site as it is not a natural consequence. Therefore, most likely, the implied license will not cover that.

    There hasn’t been a case to test this that I know of, but I have not read a lawyer’s opinion that said otherwise. Besides, posting an email on a site is not a direct consequence of sending an email, it is an action taken by the recipient without the permission of the author.

    As always, this type of argument will be held up to a fair use test and anyone seeking to use email correspondence on their blog can mitigate this by quoting only what is necessary, making sure that the use is transformative, meaning that another work is created from it, and using it for commentary or criticism purposes.

    Those issues have to be taken case-by-case.

    The privacy issue is much more complex and, unfortunately, can’t be answered here. It will depend on five things.

    1. The laws of the state(s) involved.
    2. What was in the email.
    3. What information was posted.
    4. Whether or not the person who sent the email is a public figure.
    5. Whether the judge likes you.

    The one thing that is critical here is that a person who thrusts him or herself into the public spotlight, for example, by running a site or introducing themselves into a major controversy, has fewer privacy protections than a regular citizen.

    This isn’t to say it wouldn’t be a privacy violation to pst something like this from a public figure, it would just be a harder privacy case to make. The real issue is what is in the email and what is posted. If it’s a rave review for a restaurant that is much different than posting my secret crush on Joan Jett (whoops).

    The bottom line is, whether it is an invasion of privacy is very much a moving target but it is a very dangerous game to play.

    There is one further side issue, defamation. If you quote someone from an email but only select certain portions and change the meaning of what is said, that can be considered defamation. Also, even if you quote someone entirely, if you don’t put the quote into context and it besmirches their reputation, that can also be considered defamation.

    All in all, I tell most who ask me to never post email correspondence on their site, it is too risky in too many ways. If someone does it to you, there are many potential avenues of attack and several ways it is actionable in court.

    Still, if you’re worried about email privacy, but a disclaimer in your footer indicating that this email is considered private and is not for republication. It really isn’t necessary for the most part, but is never a bad idea.

    Speaking of which, I probably need to change mine…

    Hope that this helps. If you have any further details you want to provide, I’ll gladly give a more detailed analysis.

    Jonathan Bailey – plagiarismtoday.com

  2. Lani_Giesen says:

    Jonathan, often I see emails quoted without attribution. Does this cover the privacy issue at all and does it create further copyright issues?

    Blogging Personal ~ Arriving Soon.

  3. Jonathan – perhaps a blog herald or PT post with a link to your post in a comment would have been sufficient :P

    One thing that may not apply in this case are NDAs (non disclosure agreements). I can see how an issue could pop up if you share an e-mail received from your employer who you signed an NDA with for certain things.

    For example – I’d imagine if you worked for a secretive company like Apple and posted one of the e-mails on your blog you’d probably get fired – or at least disciplined in some way.

    Also, I suppose if you stick a little “do not share this e-mail without prior written consent” in your e-mail sig you’d at least have some legal grounds for getting it removed – if it really was that important.

  4. plagiarismtoday says:

    Lani:

    Both defamation and privacy require that a third party be able to identify the person involved. That being said, you don’t necessarily have to name them just offer some means that any third party could identify who you are talking about.

    For example, if I said that I knew of a certain individual who (insert something really embarrassing here) later went on to become President of the United States in 2000. You would know that it is President Bush.

    Even if you don’t attribute the use, if someone, anyone, can figure out who it is about and would think less of them or learn private information they did not already know, there is a potential privacy or defamation issue. It doesn’t matter if we’re talking about that person’s mother.

    As far as copyright issues goes, lack of attribution would hurt a fair use argument by showing an element of bad faith but it would not kill it outright. Other factors still weigh more heavily.

    However, it is a classic “dammed if you, dammed if you don’t” situation. Attribute well and you could raise a privacy concern that wasn’t there before. Don’t and it could be a copyright issue that wasn’t there prior. It is an unlikely scenario since you don’t always need attribution for fair use or identification of a party in a privacy lawsuit, but it could happen.

    Nusuni:

    Eh, just tack it on to my average 3000 words per day that I write, not counting email.

    But yes, you are right that an NDA is a separate issue that I failed to mention. As someone who has signed more than a few of those, I should have known better!

    If you sign an NDA, you definitely don’t want to be spreading around any email correspondence you have. Of course, at that point, you’re not delving so much into copyright and privacy issues as good old-fashioned contract law.

    However, you’ll know if you’ve signed an NDA as you will have literally signed it. An email, by itself, does not carry an NDA.

    Of course, if we reeeeeeaaaly wanted to mess this up, we could talk about whistleblower protections, trade secret issues and the various SEC regulations that swirl around the release of confidential financial data and insider trading.

    But, for the sake of myself and others reading this. I’ll take a pass on that right now unless there are specific questions.

    One could easily write a novel about the dangers of posting private correspondence to the Web…

    Jonathan Bailey – plagiarismtoday.com

  5. Markus Merz says:

    Declare your mail as not bloggable (better is)

    Without all the legal discussion surrounding it it looks simply cool and crispy

  6. plagiarismtoday says:

    I like the form idea. However, I think I’ll plagiarize from some of my lawyer friends as I’d feel better going the slightly more formal route. I’ll ask around some and post whatever I get…

    Jonathan Bailey – plagiarismtoday.com

  7. Markus Merz says:

    Jonathan: Yes, some real advice how to act in advance will be appreciated.

    Another thing is the not blog savvy Joe Surfer stumbling across comment forms and wondering why his comments are suddenly public… A good comment policy is a similar issue.

    Here in Germany we just had a real case where a blogging journalist was punished because he did not immediately delete a harmful comment. The comment was posted at 03:00 and the blogger deleted the comment at 11:00. That didn’t help him!

  8. Just my two cents worth:

    This is definitely a touchy situation liking to what is said between friends and co-workers especially on a personal/unofficial basis. It’s usually taken that what you tell someone you know in an “offside” manner will not be repeated to others unless said friend or co-worker asks if he/she can “pass this on” or you indicate such.

    I have in the past published excerpts or full content from emails I had received that I thought would make a a good post but only after I asked permission to do so from the sender of that email. To do otherwise shows a complete lack of character and discretion on the part of the publisher.

    Unfortunately, unless there are laws specifically tailored to such cases (do we censor our friends if we find that they have passed on a personal conversation to others?) it seems that it’s much the same as private conversations between friends and co-workers, trusting the other to keep it between the two of you.

    Beyond contacting the perpetrator and letting them know that publishing content from an email you sent without your express permission after the fact or as previously suggested, adding a disclaimer at the bottom of said correspondence, I don’t believe there’s any specific legal precedence for taking action against the publisher. In the matter of passing on/leaking “inside information” on strict business matters, this is an entirely different thing of course.

  9. plagiarismtoday says:

    Markus:

    Lawyer friends are all on vacation, big shock there. I’ll probably touch base with them after the holidays and get it then. My IM list right now is shorter than a list of original thoughts your average politician has.

    I did try to look up some good samples though and only found a slew of bad ones. Most email disclaimers deal more with confidentiality and “opinions expressed” rather than copyright and privacy.

    I’ll ask around and see what I can get.

    Kirk:

    I have to agree that this is mainly an ethical issue. The odds of someone actually suing over this, as with most such infractions, is slim to none.

    That being said, there is little doubt that emails are protected by copyright. They meet all of the requirements easily. As such, you could, at least theoretically sue over that and I have seen DMCA notices used in these cases successfully.

    I’m not saying it is the best approach, just that I’ve seen it done.

    So, there is at least some legal precedence, I don’t know of any case law in this area but it really isn’t my strongest suit.

    Still, you are right that it is an ethical issue first, as are most legal matters…

    Jonathan Bailey – plagiarismtoday.com

  10. When you mail something, e- or snail, you retain the copyright to your material. The other person has a use of the thing itself, but they can’t publish it. This comes up with letters to/from famous people. The writer owns the contents, the receiver owns the physical object. So if someone sends you an email you are not allowed to publish it. That said, I don’t know how fair use comes in with an unpublished item. You might be automatically allowed to publish excerpts.

    That all said, politeness demands that you ask permission before you publish any part of an email. It is rude to do otherwise even if it were legal.

  11. Jonathan,

    This is getting interesting. I wonder what the general odds are of successfully suing someone over the use of content of a private email, non-business related based on copyright alone. My guess it would vary wildly between each individual case and get enough of these types of cases it might actually open a can worms that would have been best left shut.

    Just thinking out loud here.

  12. plagiarismtoday says:

    Kirk:

    That’s really impossible to say, but I can take a pretty good guess.

    The first problem is that, before one can sue in U.S. Federal Court, they have to first register the work with the United States Copyright Office. The odds of someone having actually registered a simple email with the USCO, including having spent the $45 filing fee, are practically nil.

    If we put that aside and assume we’re dealing with a superhuman copyright buff that registers every work put to paper or has otherwise registered this work in the past, the game changes a good bit.

    The first question is whether there was an implied license to use the text. If I interview you for an article and you sue me for quoting you, that would be clinically insane. I’m interviewing you, you know it, I made it clear, you should expect your words to appear on the Web.

    The next question is the traditional one of fair use. That, as usual, wades into a quagmire of questions about transformative use, commercial use, parody, news reporting and a slew of other issues.

    If we discard the fair use issues, say by assuming that it was a private email posted in entirety for no good reason at all, then the likelihood for success is actually pretty high.

    However, the question is whether or not you would obtain enough in damages to warrant the lawsuit. Considering you’d have to pay attorney fees, court costs, travel expenses and any other fees to sue someone over such a matter, it is debatable if you would ever be awarded (much less actually receive) enough in damages to warrant the process.

    The odds of having all of the dominos in place to secure a win are very low and any actual courtroom win would likely be a pyrrhic victory at best.

    If you can get the pieces in place, you could almost secure victory. But really, who would want to?

    Just my take on it.

    Jonathan Bailey – plagiarismtoday.com

  13. John,

    Now that’s a good look at the situation and from that it all seems to boil down to someone or someones actually going forward with something like this based on principles alone (and they better have a lot of dough as well as tenacity) otherwise it definitely wouldn’t be worth it. And like you say, whose going to copyright their email or even think of it in the first place?

    My personal view has always been to never do anything based on principles alone. It’s (almost) always the wrong thing to do.

  14. Steve Imparl says:

    It is fun to try to answer questions such as Ryan’s with discussions about fair use, implied licenses, privacy, defamation, and all that other interesting legal stuff. It can also be very dangerous and misleading, depending on how much we know about the e-mail messages that triggered the query in the first place.

    Simply stated, we need a lot more facts. For one thing, who sent the e-mail? Was the sender the person whose e-mail has been used on a Web site without his or her permission? Does the Web publisher want to use another person’s e-mail message on a Web site?

    Before getting entangled in the legal questions, let’s consider some commonsense issues. Here are just a few points we need to ponder.

    1. Why do we want to post the e-mail publicly?

    2. Can we get permission or reach an agreement with the person publishing the message to license it to them?

    3. How important is the use of this e-mail in the big scheme of things? I have seen many instances where bloggers and other Web publishers have had a sense of entitlement to just about any content they could get their hands on. Those are extreme cases, and I’m not suggesting that’s happening here. However, is the exact content of the e-mail message so important that it has to be copied? Could it just as easily be mentioned with a sentence or two describing the content and saying the message is on file with the author of the blog post or Web page?

    4. To what extent should we consider good, old-fashioned manners in guiding the decision to publish the contents of an e-mail message that the sender probably presumed would be kept private? A little netiquette can often go a long way toward preventing disputes and the need to explore all the legal issues that accompany such disputes.

    Again, it’s hard to answer this in anything but the most vague of terms without many more facts. Even so, I think looking at the situation in more practical terms might guide us to a satisfactory resolution that doesn’t involve an extended legal analysis.

    Additionally, I have a few general cautions. First, be very, very careful about concluding much about fair use rights, especially if you’re not a lawyer or not being advised by one. The law concerning fair use of copyrighted works is very complex and very dependent on the specific facts of the case. Second, be very, very careful about any conclusions concerning implied licenses, for the same reasons.

    In these situations, the facts are really essential for a good legal analysis.

    Although I am a practicing lawyer, my remarks in this forum, or anywhere else on the Internet, are not intended as legal advice and they cannot be used as legal advice. I post these remarks are solely for general information and for discussion purposes and I do not intend to create any attorney-client relationship with anyone who reads them.

    Best regards,

    Steve

  15. plagiarismtoday says:

    Steve:

    I couldn’t agree more. I tried to pry more information with my first reply. There really is too many unanswered questions. We can talk at length about the potential dangers, but without the facts of the case, we can’t really understand what is going on and give any kind of meaningful advice on that specific case.

    Personally, I never publish email without explicit permission. But that is just me…

    Jonathan Bailey – plagiarismtoday.com

  16. Lellandra says:

    Hello

    I am wondering if you can help me out with this. I have a new business that I have been working hard on. Basically its a work at home company and I have a lot of different services that I offer. Well recently I posted looking for writers. This woman answered and inquired as to the pay, which was varied. However, she didn’t like the amounts and sent me back a very nasty and unprofessional response. I was tempted to let it go but I did respond. I was very professional and told her that I was sorry she was unhappy, however I didn’t feel she had to respond in such a nasty manner. I put it much more mildly and nicer than that. However, later on I found a link in the comment section of my website.
    It was to her blog, and I can only figure she put it there to make sure i saw her post. I think she started off talking about me and saying Sc*** You! And then, I got to see in big capital letters her telling all writers that read her blog, or that also might search out my name and company to NOT work with me. She went on to say how my company and I were a scam. She then went into details telling exactly what happened, how she applied and my response by email. Then she additionally posted the entire email.
    I have to tell you, this was about a month ago. I am still extremely upset. I have been working hard to get my business going and acquire a fair honest reputation. I did email her about all of this and about her post about my company. She responded it was her blog and she could do what she wanted. She also posted that email in its total entirety too.
    I noticed I am not the only one that is at her mercy. She has had quite a few people/companies that she has trashed over what they are paying or various other things that upset her. Again, posting emails that were work related. A few of these companies she even contracted with.
    So my question is…is there anything I can do about this? Or am I at the mercy of anyone who gets upset with me or my company? Any help would be greatly appreciated.

    Lellandra

  17. plagiarismtoday says:

    Lellandra:

    From a copyright standpoint, you find yourself pretty much in the same case as above. Without knowing all of the facts, looking at the use and seeing what this person did exactly, there really isn’t much of a way for anyone to analyze it and make any estimations about the legality of it. Of course, even if we could, it would be just an educated guess and could easily be tossed aside if the case made it to a court.

    But let’s take a moment and analyze this from a more earthly standpoint. Say we do decide that she is infringing your copyright. The natural course of action is to then file a DMCA notice against her and get the work removed. If we do that, the letter and the attached literary abuse comes down, but what do you think her next move is going to be?

    Well, it won’t be to forget the whole thing and move on. A person who seethes with rage at a monetary offer less than to her liking is not to the type to take this lying down. No, it would open you up to a brand new slate of attacks, ones without copyright implications.

    You see, those of us that deal with these matter refer to the “Streisand Effect”. Basically, it is a situation where trying to censor something only causes it to get more attention. If you know of the HD-DVD key incident on Digg it is an excellent example.

    Right now this person is a lone kook. There are a lot of ticked off people on the Web and you do a search for any company that is large enough and you’ll find a few people with horror stories. That doesn’t mean anything. But if you go after her you give her creditability and new horror stories to tell.

    My honest advice is pretty simple. If she’s just expressing her opinion and being a general pain, ignore it. You might feel as if you are at her mercy but trust me, people are going to talk bad about you. Heck, I think that’s a semi-pro sport when it comes to me.

    If she’s materially misrepresenting facts, falsely accusing you of a crime or saying something that is demonstrably untrue, hire an attorney and consider going after her for defamation. It is one thing to say “blank is a scam” (indicating she thinks you pay so little it is a scam) and another to say that “blank is defrauding people” or “blank never paid me for my work”.

    If she’s crossed the line, she needs to be held accountable.

    Otherwise, the best thing you can probably do is ignore it. People like this tend to move on quickly, the get upset about something, shoot their mouths off and ride that wave until something else gains their ire. You said yourself you’re not the only one. The more people she hates, the less credibility she gets.

    Personally, I wouldn’t risk drawing out the confrontation unless you have a confirmed defamation issue, it just isn’t worth it.

    Sorry that I can’t be of more help, but I’ve see these things go awry too many times to say anything else!

    Jonathan Bailey – plagiarismtoday.com

  18. An interesting question with well thought out responses. A question arises that is there much difference between the real and virtual world besides the point that your identity can be hidden? Can the above be applied to spamming?

  19. An interesting question with well thought out responses. A question arises that is there much difference between the real and virtual world besides the point that your identity can be hidden? Can the above be applied to spamming?

  20. I have a blog I use as my “diary”. As far as I know, no one reads it. Maybe a friend or two – when I ask them to check out something posted there. I don’t have anything set to private, so it could come up with a random search feature blogger.com provides.

    When I want to make sure I accurately cronical events of my life I will post emails sent to me once I remove most of the identifying information other than first names. I have never asked anyone’s permission.

    Recently a friend and past co-worker found out a previous boyfriend and co-worker slept with another co-worker. She sent an email to about 10 of us who still work for the company (not BCC’ed, all recipients could be viewed) accusing us of knowing and not telling her. Three of us replied to all. I removed any company info and all last names (replaced with the word “Llama”) then posted the email and the three replies to all.

    This friend then emailed me personally and I did the same. Instead of replying to her last email I sent her a link to my blog, which had my reply posted. She emailed back “I would appreciate it if you took my quotes offline. You have no right to post my words.” Now in this situation, if I’d summarized or paraphrased I may have lost the point the “authors” were making or misrepresented someone. Should I change my posts to eliminate the copied emails and just change everything into “my point of view”?

    I will send you a link to the blog upon request, if that will make answering this question easier.

    Thank you for your time,
    IzzeT

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    I wrote an email to a local business, expressing my displeasure with a t.v. commercial they sponsored which I found very offensive. Several days later I discovered that the business had taken out a 1/4 page ad in our local newspaper. Much to my shock, the ad included my letter, verbatim, but with no name. The business said they wanted to know what other people thought about the commercial, and directed them to a website where they could view it. Also included was the business’ email address where people could send their “opinions”. This seemed to be a blatant attempt to capitalize on “controversy” by using it to draw attention to their commercial/business. At no time has this business responded to my email, or asked my permission to use my letter in their ad. This seems very unethical at the very least, and illegal at worst.

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