Email archiving and e-discovery isn’t just a technical challenge. Laws, regulations, and industry best practices set a complicated framework of guidelines and rigid rules that organizations must adhere to when retaining email records. What laws and regulations should UK companies reference when creating a corporate email retention policy, and how will the rules affect their strategies?
In the UK, there are no general cross-sector rules for how long email should be retained, unless you are in an industry that is affected by some specific legislation or heavily regulated by an industry body. Thanks to EU law, the telecommunications industry falls under the former.
In the communications sector, telephony, SMS, email, and web data must be retained under the EU Data Retention Directive. It stipulates a 12-month retention period for internet email (along with Internet access and telephony records) but it is important to note that it applies only to metadata. Communications companies must store data necessary to trace the source and destination of an email, and the date and time it was sent, as part of their email retention policy.
Significantly, this Directive was struck down by the European Court of Justice, but the UK law implementing it, called the Data Retention (EC Direction) Act of 2009, still stands.
The UK Government subsequently attempted to address this with the Data Retention and Investigatory Powers Act (Dripa) 2014, but this was struck down as unlawful by the High Court in July 2015. Currently, the UK government is set to introduce the Draft Communications Data Bill, widely expected to enforce an equivalent or higher email retention policy on communications companies.
Government departments are regulated by the Freedom of Information Act, which doesn’t dictate specific archiving times as part of an email retention policy, but does require departments to set a clear retention and destruction schedule under the Lord Chancellor’s Code of Practice on the management of records.
In professional sectors where companies are heavily regulated, different rules will apply depending on the industry. For example, the Solicitors Regulation Authority requires a wide variety of records to be kept for six years, including records of transactions and commissions.
In the financial sector, an email retention policy must make emails available for six years, according to the Financial Conduct Authority.
In the UK, the Civil Procedure Rules make it possible to bring a claim for breach of contract within six years, and they also require companies to be ready for e-discovery for electronic records including email. This alone should encourage a healthy corporate email retention policy.
Finally, it’s worth considering what requirements apply to email that you have retained, whether you needed to or not. The Data Protection Act (DPA) 1998 asks organizations only to retain personal data (which would include emails referring to individuals) for as long as absolutely necessary.
The Act also allows people to request copies of any personal data held about them, which includes emails referring to them. If requested, a company has 40 days to comply. This is one reason to consider a forced deletion policy if email archiving is not regulated or needed.
All of these rules create legal and compliance risks for companies, but can also be useful tools to help reduce risk if companies comply. Organizations building an email retention policy should get technology experts, legal counsel and compliance officers together in the same room to create a binding policy that will protect them.