Email isn’t public, but that doesn’t make it private

A&L Goodbody Ireland’s IP & Technology Law blog post No Art in Emails highlights a ruling by the EU patent authorities which notes that information transmitted in an email – even in an unencrypted email that is subject to interception – is not treated as being publicly available for purposes of determining whether the information should be considered to be prior art in a patent invalidity contention.

It’s important to distinguish between the ruling’s treating emails as not being publicly available versus its dicta concluding that emails are necessarily private and confidential. Posting information on a billboard may not make it sufficiently publicly available, because it is not readily accessible to anyone searching for prior art. Posting information on a billboard would, however, make it no longer private or confidential. If a company fails to take reasonable steps to keep confidential information from being intercepted, it jeopardizes the trade secret status of that information.

It is fallacious reasoning to assert that information stored or transmitted in electronic form remains private and confidential – despite known risks of interception – because there are laws that criminalize its interception or its unauthorized access. Applying that logic, the secret formula for Coke could be kept on a desk in an unlocked office, because there are laws criminalizing trespass, burglary and theft. We do not pretend that crime does not occur. We take reasonable steps to prevent crime.

If one wants to protect the status of information as private, confidential or trade secret, then one should take reasonable steps to protect the information in light of its sensitivity and value. Emails are routinely intercepted despite laws that criminalize interception. Transmitting and storing information in unencrypted emails risks its interception and unauthorized use by third parties.

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