VIC Can I Sue Apple for Losing All My Previous Emails?

[Muxaul]

I signed up with Apple’s iCloud ( then called MobileMe) service since 2009. Recently I found out that I had lost all but one of my previous received emails prior to mid 2016. All of them were gone. That’s tens of thousands emails lost if not more.

I rang Apple’s technical support, the person was trying to help but he only managed to recover a few emails, and he said there’s nothing else that they could do.

I rely on those old emails as evidence for my coming law cases, since Apple had lost them I am now in a bad position.

In Apple’s legal terms and conditions they mentioned that it’s customers responsibility to keep a copy of contents, but email was not mentioned in their definition of ‘content’.

I wonder if I can sue Apple for the lost that they have caused?

Any suggestions are greatly appreciated.

 

[DMQC]

You would need to prove that Apple caused the emails to be lost. I am a long-time user of Apple iCloud and have never had a problem, so I don't think it is an issue effecting all users. What do you think caused the emails to be deleted?

 

[Muxaul]

You would need to prove that Apple caused the emails to be lost. I am a long-time user of Apple iCloud and have never had a problem, so I don't think it is an issue effecting all users. What do you think caused the emails to be deleted?

I don’t know what caused it and I don’t know when did it happen. Neither could Apple themselves figure out why.

Personally I guess this might have been caused by Apple switching from MobileMe service to iCloud service. But this is purely a guess. The only fact here is that recently discovered that I have lost all my received emails before mid 2016 except one left. it looks like my sent emails are still there.

 

[DMQC]

I would say that unless you could prove Apple caused the emails to be deleted and that the cause was due to their negligence (and not some unpreventable error) then you're action is doomed to fail. Further, Apple are likely to defend your claim with one of the countries top firms, such as DLA Piper, King & Wood Mallesons etc. In fact I think they use Herbert Smith Freehills, at least they do for their IP cases. In any event, all multi-billion dollar law firms, and while I am all for the Aussie battler taking on the big end of town, I don't think this would be the case to do it with, at least with the information you have to hand.

 

[Muxaul]

I would say that unless you could prove Apple caused the emails to be deleted and that the cause was due to their negligence (and not some unpreventable error) then you're action is doomed to fail. Further, Apple are likely to defend your claim with one of the countries top firms, such as DLA Piper, King & Wood Mallesons etc. In fact I think they use Herbert Smith Freehills, at least they do for their IP cases. In any event, all multi-billion dollar law firms, and while I am all for the Aussie battler taking on the big end of town, I don't think this would be the case to do it with, at least with the information you have to hand.

Thanks for your advice. Indeed I have nothing to prove. But Apple also can’t prove the reason of lost emails, right? Only my account has suffered lost, this doesn’t look like a unavoidable technical incident. And if I was the one who deleted them, Apple would have some records of my performing the delete operation, right?

 

[Rod]

Apple don't have to prove they didn't do it. You have to prove they did it.

 

[Rob Legat - SBPL]

And you'd need to prove that the emails existed unless Apple agrees that they did. And their lawyers would be very likely to advise them not to do so.

 

[Muxaul]

Apple don't have to prove they didn't do it. You have to prove they did it.

And you'd need to prove that the emails existed unless Apple agrees that they did. And their lawyers would be very likely to advise them not to do so.

I can prove the emails existed. Because only the received emails are lost, the sent ones, including my responses from received emails, which include quotes from previous received emails, are still there. Many of them are from 2013 or earlier. This should show that I indeed received them.

Also when I talked to Apple’s technical support, they managed to recover a few of the lost emails, about 30 of them.

 

[DMQC]

Thanks for your advice. Indeed I have nothing to prove. But Apple also can’t prove the reason of lost emails, right? Only my account has suffered lost, this doesn’t look like a unavoidable technical incident. And if I was the one who deleted them, Apple would have some records of my performing the delete operation, right?

You have everything to prove. If the law were based upon the logic in your comment I could sue you for shooting my dog, I cannot prove you done it, but you cannot prove you did not shoot my dog? I do not wish to come across condescending, but I thought a ridiculous example would help highlight the issue with the logic.

Your original question was "Can I sue Apple..." which I think has changed to "What do I need to prove to sue Apple for...". The answer to the first question was, and still is, no. To answer the second question, you would need to decide if you are suing them in contract or tort.

The law of contract is there to bring the plaintiff to the position he/she would be if the contract had been performed.

The law of tort exists to bring the plaintiff to the position he/she would have been, but for the tort.

If you went with contract, it all depends on the contract, I cannot comment specifically.

If you went with tort, specifically negligence, you need to prove -

1. Apple owed you a duty of care.

2. There was a breach of the duty of care.

3. You suffered a loss because of said breach.

4. The loss was a reasonably foreseeable consequence of the breach.

Australian Consumer Law falls under the area of 'contract', which is too broad to comment on here, but you could also have a look at that if you wish.

 

[Muxaul]

You have everything to prove. If the law were based upon the logic in your comment I could sue you for shooting my dog, I cannot prove you done it, but you cannot prove you did not shoot my dog? I do not wish to come across condescending, but I thought a ridiculous example would help highlight the issue with the logic.

Your original question was "Can I sue Apple..." which I think has changed to "What do I need to prove to sue Apple for...". The answer to the first question was, and still is, no. To answer the second question, you would need to decide if you are suing them in contract or tort.

The law of contract is there to bring the plaintiff to the position he/she would be if the contract had been performed.

The law of tort exists to bring the plaintiff to the position he/she would have been, but for the tort.

If you went with contract, it all depends on the contract, I cannot comment specifically.

If you went with tort, specifically negligence, you need to prove -

1. Apple owed you a duty of care.

2. There was a breach of the duty of care.

3. You suffered a loss because of said breach.

4. The loss was a reasonably foreseeable consequence of the breach.

Australian Consumer Law falls under the area of 'contract', which is too broad to comment on here, but you could also have a look at that if you wish.

Thank you again for the detailed comments. So according to you, what can consumer do if Apple/Google or whatever loses customers emails?