Republishing Email: The Great Debate

photo credit: akeg

Whenever I am answering questions about copyright or plagiarism issues, it is almost inevitable that someone asks me this question:

“Is it OK for someone to publish an email they get on the Internet?”

This seems to be one of the most common issues people have on the Web. Whether they are someone who has had their email published or are considering publishing someone elses, the legal questions about whether or not it is acceptable to post an email sent to you are constant.

Those questions have only ramped up since the recent hacking of Sarah Palin’s personal email account, resulting in the posting of many of the messages.

Is it legal to publish someone else’s email? It is a tough question. For the sake of time we’re going to assume that the two parties were the sender and recipient of the email respectively, thus avoiding the issues of unauthorized access.

With that in mind, I’m going to provide this in a point/counterpoint fashion to highlight some of the complexities of the laws involved.

Point

Email meets all of the criteria for copyrightability. It is an original work of authorship fixed into a tangible medium of expression. The act of hitting “send” writes the content to a server somewhere, thus qualifying it as being fixed.

The application means that the copying and pasting of it into a Web site, without permission, is most likely a copyright infringement.

Counter-Point

However, when you send out an email, you are likely providing an implied license for many things to happen with it. Automatically, the email is copied multiple times as it makes its journey and there is no case against any of those copies.

Further more, it is a foreseeable consequence the recipient may forward the email to friends and family or even to a large mailing list. That is a form of republication in and of itself and posting a work to the Web is not far beyond that.

Many might argue that, by sending an email to someone, especially someone who is a known reporter or blogger, that there is an implied license to publish it.

Point

The implied license argument is weak at best. Forwarding an email to people you know is different from posting it on the Web the same as forwarding a letter to another office is different from tacking it on the bulletin board.

Implied license issues on the Internet typically deal with works that are already posted on the Web, such as blog posts, and not emails that were intended for one viewer. Despite the ability to forward a message most, when they send an email, only intend the recipient to read it.

An email being republished on a blog is not a foreseeable consequence in the vast majority of cases. That makes an implied license argument very difficult to make.

Counter Point

Even if the implied license argument does not hold, there are still many other exemptions to copyright law that can apply.

First and foremost, facts and information, by themselves, are not copyrightable. Copyright law protects the expression of an idea, not the idea itself. If one does not copy verbatim but only expresses the facts, it is most likely not a copyright infringement.

Second, fair use allows the use of small portions of copyrighted material for the purpose of commentary, criticism, etc. As long as the use is reasonably transformative and does not use more material than is necessary, it is very likely that the use would be deemed “fair”.

Point

The fair use argument is an uphill battle. An email would not be considered a published work, thus, it is much harder to make such a claim. Furthermore, remember that fair use is an affirmative defense and, even if you did win, you would still be sued and likely be dealing with court expenses. Relying on fair use is risky at best.

However, there are still other laws that deal with email republishing such as privacy, defamation and trade secrecy. Copyright is just one possible angle.

Counter Point

In the U.S., there can be no invasion of privacy without there first being a reasonable expectation of privacy. An email, when sent unencrypted, can be easily read by anyone looking at it in transmission, it is essentially a postcard working its way through the mail system, easy to open and read.

Unless additional steps are taken, there is almost no expectation of privacy. Furthermore, if you send the email from work, where you likely sign away much of your privacy rights, you might have even further restrictions.

The other issues don’t directly pertain to republishing email. Defamation and trade secrets are both problems with republishing email, but the fact that the information came from an email doesn’t add any large new legal questions. You always have to be careful what you publish, no matter where you get the content from.

Point

The “reasonable expectation of privacy” limitation only applies to the United States. Other countries, for the most part, seem to treat email with the same privacy reverence as postal mail.

Furthermore, even though you may feel that there is no “reasonable expectation of privacy”, the courts seem to disagree. This is why the government needs a warrant to access your emails.

If the U.S. government needs a warrant to access your emails, it only makes sense that posting such emails on the Web would be a violation of privacy.

Counter Point

The case you mentioned deals only with email stored on an ISPs server and not email in transmission. Furthermore, the ruling was very narrow in nature, leaving room for ISPs to trump your privacy expectations in their license agreement.

Most users still have no reasonable expectation of privacy, even on email stored at their ISP, much less in transmission.

However, all of these issues become moot. If something can be deemed to be newsworthy, the first amendment grants broad protections for people to report on the facts, no matter how they got the information. As with the case of Wikileaks and Palin’s email, the site is not liable due to the freedom of press and the fact they were not responsible for the break in.

There are many ways around the privacy issues, especially in high-profile cases, and most privacy rights as they pertain to email are, at best, untested.

Bottom Line

This is just a brief overview of some of the key issues that arise when dealing with publishing email on the Web. This imaginary debate could likely have gone on for days with no real conclusion.

If you are wanting to use an email in a blog post or other article on the Web, the best thing you can do is either ask for permission or approach the person as a reporter and make it clear that all of their replies are on the record.

If you want to protect your email privacy and prevent publication, the best thing you can do is encrypt it, thus ensuring that only the recipient could receive it and establishing an intent to preserve privacy. Failing that, you can use disclaimers in your email though the legal effectiveness of such disclaims has not been adequately tested.

The absolute best advice is to not put anything in an email that you would not be comfortable with it being posted. Though almost everyone does, with the laws where they are, it is a risky activity.

Conclusions

The purpose of this exercise was not to reach any kind of conclusion about whether or not republishing email is legal and, if so, under what circumstances. With so many laws and issues in play, this is clearly a legal minefield no matter how you approach it.

The best thing you can do right now is be smart about how you use email and what you send through it and to also treat other’s email with respect.

If you do that, you can skirt these issues completely because you can avoid misunderstandings. If you don’t, there’s almost no telling what can happen legally as so much of this is untested.