If an argument occurs between an employer and a former employee over the issue of e-mail files, the question arises as to whether the employer can claim the e-mails as his/her property. It was regarding that question that the Court of Appeal of Arnhem rendered a decision on 3 May 2011.

A general manager of a job placement agency terminated his employment and entered into the employ of a competitor. In addition, he took a number of other employees with him to that competitor. He returned his laptop, owned by his employer. The employer had a commercial investigative agency examine that laptop. That agency concluded that e-mail files likely containing sensitive company information had been deleted. The employer then demanded that the former employee return all documents without keeping any copies. The former employee subsequently indicated that he had returned everything.

In preliminary relief proceedings instituted against the former employee, the employer demanded that it be furnished with all e-mails and other documents subject to a penalty. The former employee then issued a DVD with a copy of all incoming and outgoing e-mail messages up to the date he left the company. The court of first instance dismissed the demands of the employer.

On appeal, the employer argued that it was the owner of all documents and e-mails and, based on its proprietary rights, it demanded the transfer thereof by the former employee, without the former employee keeping any copies thereof. The employer based that demand on its proprietary rights to the e-mails.

The Court of Appeal rejected this demand. To that end, the Court of Appeal found that it was not evident that the DVD was the property of the employer. Nor was it evident that the e-mails contained on the DVD (digital data) are subject to surrender (revendication) under the proprietary rights of the employer. Pursuant to Article 2 of Book 5 of the Dutch Civil Code, surrender under proprietary rights is restricted to things. E-mails and other digital files are not things. That follows from Article 2 of Book 3 of the Dutch Civil Code, which states: “things are corporeal objects which can be subject to human control.” E-mails and other digital files are not to be considered as such.

Conclusion: e-mails are not subject to surrender under proprietary rights. It would have been of great help to the employer in this case if it had agreed with the employee that all digital or physical documents relating to his work had to be returned at the end of the employment, without any copies thereof being kept. On the basis of such an agreement, the employer could have demanded the surrender of the e-mails and other documents by virtue of a contractual obligation of the employee. In this case, apparently, such an agreement had not been made or the employer had not relied on it.

Jaap Kronenberg