New legislation could make forwarding e-mails illegal!
by Alison Lam, Freehills
"Recent media reports have suggested that the Act could make it illegal to forward e-mails (even personal ones) to others."
The Copyright Amendment (Digital Agenda) Act 2000 (Act) came into effect on 4 March 2001. Recent media reports have suggested that the Act could make it illegal to forward e-mails (even personal ones) to others. The reports suggest that such action could be construed as a breach of the copyright of the e-mail's original author. These reports have sometimes highlighted potentially hefty penalties of up to five years jail or $60,000 in fines.
In an effort to tackle these reports, the Attorney-General (AG) issued a news release on 4 March 2000 which labelled such assertions as 'ridiculous' and 'alarmist'. The AG stated that the Act is designed to update copyright law to ensure it provides the same protections in an electronic environment as exist in a hard copy environment. The Act allows copyright owners to restrain the unauthorised communication of their works to the public. The concept of "communication to the public" is intended to be technology-neutral and replaces the rights of a copyright owner to restrain the broadcast of their work and the transmission of their work to a diffusion service, whether in digital format or not.
The AG's news release states that forwarding a personal e-mail is unlikely to breach copyright laws since a court would need to find that the contents of the e-mail were an 'original literary work'. Most everyday personal e-mails were unlikely to satisfy this criteria. The examples cited by the AG included forwarding an old joke and a casual exchange of personal information or office gossip. Further, as some commentators have suggested, most e-mails are sent with an implied licence to use the e-mail in whatever manner might be considered normal practice. This includes opening, reading, printing and even forwarding them to other recipients.
Whilst some of the media reports have exaggerated the potential impact of the Act on e-mails, in some limited circumstances, forwarding e-mails may constitute an infringement of the copyright of the e-mail's original author. This is particularly so where an e-mail contains an express limitation on its further handling, such as an e-mail marked personal and confidential or where the content of the e-mail states or implies that it should not be forwarded to any one else. In addition to an action for breach of copyright, the original e-mail's author may also be able to sue for breach of confidentiality.
Ultimately, the test will lie in the value of the content of the forwarded e-mail. In practice most e-mails are unlikely to have an intrinsic commercial value which justifies an action for breach of copyright or confidentiality. It is only where e-mails have some intrinsic value and contain some limitation on their further handling, whether express or implied, that forwarding e-mails is likely to become a significant legal issue.
June 2001 contents
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