IT law specialist Michael Wigley agrees with mail filtering-company executives that companies could find themselves landed with lawsuits for not taking due care to filter emails that prove offensive to employees.
Ed MacNair, London-based director in charge of New Zealand-developed Marshal filtering products at NetIQ, is quoted along with unnamed overseas “legal experts” in local monthly NetGuide as saying there are “no excuses” for dubious email “because the technology is now available to stop spam coming in”.
While local Marshal product manager Adrian Duigan doubts that MacNair would have been that uncompromising in his comments — “I don’t think Ed would say that. His comments have probably been edited down” — he says if a company has not implemented any filter, or put it in inadequately, it could leave itself vulnerable to legal action.
“The expectation is not that companies can cut out all spam, but that they should take reasonable steps,” Duigan says. “No filter is infallible.”
Wigley agrees that an employee confronted, for example, with pornographic spam he or she finds unacceptable might be able to bring an action under a contract of employment with express wording about providing a safe working environment.
Less likely might be a case under torts covering the duties of employer to employee outside specific contract.
Wigley does not think there has been a local case of the kind, but cites an action in the US whereby Intel sued former employee Ken Hamidi under a “trespass to chattels” statute (originally covering physical interference with personal property) for sending emails critical of Intel to staff still at the company. After a prolonged legal battle, the Supreme Court of California found in Hamidi’s favour last year.