Employee’s personal emails sent using employer’s main business email account not private or confidential (Brake v Guy)

The Court of Appeal has dismissed the claimants’ appeal against their unsuccessful claims for a final injunction and damages for misuse of private information and breach of confidence arising from the first defendant’s employee’s use of a business email account for personal emails. The judge at first instance had determined that the claimants had no reasonable expectation of privacy and no right of confidentiality in respect of the personal emails sent and received using the main business email account of the third defendant. The Court of Appeal held that the judge had been entitled to find that there was no reasonable expectation of privacy or confidentiality as against the defendants, who had made limited disclosure of the emails to professional advisors, and the appeal should therefore be dismissed.

Brake and another v Guy and others [2022] EWCA Civ 235

 What are the practical implications of this case?

The case affirms the fact-specific nature of the balancing exercise to be carried out and illustrates the dangers of claimants seeking to clothe broad categories of material in the protections of privacy or confidentiality without providing specific evidence.

As a general rule, or ‘legitimate starting point’, certain types of private information will normally be regarded as giving rise to a reasonable expectation of privacy (including information about a person’s health, private finances and personal communications and correspondence), whereas other types will not (including involvement in criminal activity).

However, as recently affirmed by the Supreme Court in Bloomberg LP v ZXC [2022] UKSC 5, the determination as to whether there is a reasonable expectation of privacy in the relevant information remains a fact-specific enquiry. The general rule does not invariably lead to a finding, or obviate the need for a claimant to set out and prove, that there was objectively a reasonable expectation of privacy in the information.

Claimants must set out and prove why the specific information is private and/or confidential by reference to the material. The failure to do so here was fatal to the claim. As the judge observed when refusing permission to appeal (see Axnoller Events Ltd v Brake [2021] EWHC 949 (Ch) at para [12]):

‘…the claimants’ problem is that at trial they did not take me through the individual documents, or even the categories of documents in the enquiries account, to demonstrate that the claimants had a reasonable expectation of privacy in relation to them. They had the burden of proof, and did not discharge it’

Case details

• Court: Court of Appeal
• Judges: Lord Justice Lewison, Lady Justice Asplin, Lord Justice Baker
• Date of judgment: 2 March 2022

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