April 07, 2003
Naughty spam and eager lawyers

Via Howard Bashman comes this article about the possible "hostile work environment" ramifications of unwanted pornographic email.

"You have to provide a workplace that's free of sexual harassment. That right is so clearly established that no employer could say, 'I didn't know I had to do that,' if they're on notice about sex spam," said Michael Modl, an attorney who specializes in workplace harassment claims at the Madison, Wis., law firm of Axley Brynelson.

The legal arguments have not yet been tested in court, but scholars say the combination of lucrative damages and porn spam's steadily increasing volume will make lawsuits drawing on at-work porn spam inevitable. Statistics compiled by analysts at antispam-software company Brightmail show that pornographic solicitations represent the fastest-growing category of unwanted e-mail ads, doubling as a percentage of spam in the last few years.

Many of those messages come with images linked to outside Web sites, images that are displayed automatically in the preview panes of popular e-mail clients such as Microsoft's Outlook, potentially exposing even cautious e-mail users to offensive pictures and to various security issues. Microsoft has said it plans to tweak the image default settings in a pending version of Outlook to prevent pictures from showing up on a computer screen without the consent of the user. The move is necessary to curtail spam, the company said, without specifically mentioning porn.

I've seen a lot of this sort of thing in my job. There are a number of reasonable things a corporation can do to curtail spam, some of which are more expensive than others. I looked at Brightmail awhile back, and while I've no doubt they're good, they ain't cheap. All filter solutions impose some risk of rejecting legitimate mail - the filters at Tiffany's workplace are tuned to reject anything with swear words in it, which has caused quite a few unintended bounces - and all of them require the time of one or more technicians. The first few times these cases get litigated, juries are going to have to decide what a "reasonable" effort by a company to block offensive mail is.

One thing that isn't often mentioned in this context is user training. Someone has to find your email address in order to abuse it. Filling out web forms, giving it to vendors, posting to newsgroups - there's all sorts of ways for your address to get harvested, and I guarantee that many employees don't know about them. I can imagine an affirmative defense of "We gave you all kinds of training about appropriate use of email, it's your own fault spammers found you".

Hans Bader, an attorney at the Center for Individual Rights, has criticized "hostile environment" laws as violating free speech rights guaranteed by the First Amendment. Logically, he said, mass e-mail should not count as sex discrimination because spammers don't know the sex of the person who reads it.

Bader said that courts, especially state courts, still take an expansive view of sexual harassment, but he predicts that will change over time as courts become more sensitive to free speech concerns.

"It's ironic to treat gross e-mails as sex discrimination against women, since that assumes that women are especially sensitive and mentally frailer than men are--if it offends them equally, there is no discrimination," Bader said. "Yet that is what sexual harassment law does now in many jurisdictions--it bans sexual speech because people think women are uniquely offended by it. It is based on sexual stereotypes."

Now this guy is just wrong. First of all, I think he's the sexist for assuming that blocking porn spams is designed to protect women. Many of my male coworkers are offended by ads for penis enlargement and incest videos. Is it impossible, or even unlikely, that some men might eventually litigate against an employer that paid no heed to their complaints? Besides, the issue is not who is more offended by porno spams, it's how a company deals with the concerns of its employees. In addition, someone who claims that unwanted commercial email is somehow a free speech issue is someone who's never had to support an email system. You do not have the right to use my resources to sell your products. Finally, and no doubt somewhat ironically, there would be much less reason to be concerned about the potential of these lawsuits if we had better anti-spam laws on the books. Too bad this guy opposes such legislation.

Walter Olson, a fellow at the Manhattan Institute, who runs the Overlawyered.com site, predicts that trial lawyers will find porn-spam lawsuits to be a growth industry.

"Once an employee complains, and asks the employer to install blocking, the liability risk in not doing so grows more acute," Olson said.

Frankly, I can't see too many companies getting nailed by this. There's already a lot of sensitivity to sexual harassment, and there are legit reasons besides "hostile workplace" concerns to battle the scourge of spam. I'll be more than a little surprised if such lawsuits become commonplace. I can see a high-profile case or two being decided for the plaintiff, but I can't see this becoming a bonanza.

Posted by Charles Kuffner on April 07, 2003 to Legal matters | TrackBack

This is great, actually. "Why yes, your honor, we can prove that SpamburgerHelper.com and it's proprietors caused us real damage. Here is the bill for $25,000,000 to settle a sexual harrassment case because they created a hostile work environment in our office."

Posted by: Michael on April 8, 2003 2:00 AM

First of all, I think [Hans Bader of CIR is] the sexist for assuming that blocking porn spams is designed to protect women.

If there were a federal "no-offense-at-the-workplace" law which motivated employer efforts to block porn spam, you might be right. But there isn't. There's a federal law against gender discrimination in employment which is motivating those efforts. Why? Because case law holds that porn in the workplace can be a form of gender discrimination against women. So Hans is just explaining the case law here.

Is it impossible, or even unlikely, that some men might eventually litigate against an employer that paid no heed to their complaints?

Well, someone can always sue. But it's unclear to me that a man could assert a claim under federal employment discrimination law on the facts you suggest.

Posted by: alkali on April 8, 2003 3:26 PM

The funny thing is that there *IS* an anti-spam product out there that blocks over 99.999% of porn-spam, with ZERO repete false positives.

Using it would put an end to the worries of porn-spam, and it's much less costly than products like Brightmail.

I'm referring to SpamLion's gateway - but then of course, you'd think I'm just trying to push their product, right? Well, then it's YOUR LOSS for not taking the time to at least look at it!

They're so confident about their product they guarantee it! Let's see Brightmail or any other company offer that.

Stop wasting time, get your company to try it, then judge for yourself.

Just because a company uses some high-end anti-spam system, 1 to 5% of the porn-spam can still get through.

When the employees discover there's a less expensive solution that's over 1,000 times better, that's when you discover the money was wasted, as "we're trying our best" doesn't cut it when a company refused to even consider protecting their staff with a better solution that costs less.

It's just pure carelessness that companies won't make the effort to investigate proven products.

Posted by: Dan Weaver on February 17, 2006 3:41 PM