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Can I post your e-mail on my blog?

Recently, I received an e-mail from a loyal reader wanting to know about the legality of publishing someone’s e-mail, without their permission, on a blog. While I don’t know the absolute answer to this, here’s how I think the whole thing plays out.

First, to the extent the e-mail’s author has a copyright in the e-mail, you would clearly be committing copyright infringement. Take an easy example. Suppose I write a fictional short story and e-mail it to my buddy for his opinion. If he, in turn, publishes it on his blog without my permission - BZZZT, copyright infringement! This is true even I don’t explicitly say “this is protected by copyright” or “don’t republish this” in the e-mail itself. Things are generally going to be thornier in real life, of course, as most of the e-mails in question won’t be so clear-cut with regard to whether they’re entitled to copyright protection. But that’s the first step you’d have to do - figure out if the e-mail (or portions of it) are entitled to copyright protection - if so, you can’t republish them without the author’s permission (well, you can republish them, but you’re opening yourself up to liability).

Second, there are privacy concerns. If that e-mail contains personal information about the sender, you may be violating a state constitutional right to privacy by posting that personal and private information in a public forum. And while removing their name, e-mail address, etc. would weaken this argument, the argument might still be plausible depending upon the specific content of the e-mail.

Third, you have to look at your relationship with the e-mail’s author. For example, as an attorney I cannot republish a client’s e-mail. That violates the so-called fiduciary duty between an attorney and a client, and is also a clear violation of state ethics codes. There are other situations where a fiduciary relationship may exist, which would act to limit what you can do with information given to you by someone else, including their e-mails.

Now, I was also asked if you could simply rely on the First Amendment in republishing e-mails. Not so much. The First Amendment isn’t the end-all be-all. There’s the oft-cited “you can’t yell ‘fire’ in a crowded theater” example to prove that point. More importantly, any of the above legal issues would trump the First Amendment. The friend who republished my short story certainly has freedom of speech. But that freedom doesn’t entitle him to “speak” with copyrighted information without permission. So long story short, the First Amendment doesn’t do it for you.

So really, you’re much better off asking for permission. Aside from the fact that it can get you past some of these legal issues (risks of copyright infringement, for example), it’s really just common courtesy. In asking for such permission, it’s obviously up to you and the facts of your particular situation as to what you tell them in your request about how you intend to use the e-mail. However, do not lie or be deceptive, lest you open yourself up to a claim of fraud, which would probably be an even bigger can of worms!

Finally, if you receive e-mails via a submission form, you can always include Terms and Conditions which make it clear that a person, by agreeing to the Terms and Conditions and submitting something to you, is aware of the fact that any of the submitted information may be posted publicly and they accept this and waive any objection. This doesn’t cover you from e-mails sent directly to you, rather than via the form, but it’s certainly a step in the right direction.

So that’s my thinking on the issue. If anyone’s got other thoughts on the matter, comment away.

Posted by Seth on October 10, 2006 | Comments (2)