Porn Spam Becoming Employers Problem

Specifically, sexual harassment complaints may begin to arise from employees offended by the material, even if companies are not the source of such messages. The liability could lead to hefty civil fines if managers know that porn spam is a problem and did not address it, according to CNET News.com.

“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.

Eugene Volokh, a professor of law at UCLA, takes the argument one step further, “Just as an employer has a duty to protect from patrons and other people – like the (delivery) guy who fondles a secretary – there’s a good theory saying a company has a duty to filter (offensive e-mail) even if the employees are being harassed entirely from far outside the company walls.”

“If the employer is reasonably capable of filtering the material, and if it doesn’t do that, it would be held liable,” Volokh said.

Blocking Walls

Joanna Grossman, a Hofstra University law professor, expects cautious employers to being installing spam filters even before they receive complaints from employees.

“To be safe, employers may decide to implement some kind of general blocking software. It is an overstatement to say employers are required to (pre-emptively) block pornographic spam from reaching their e-mail systems, but it may be something employers choose to do to ensure they don’t run afoul of the rules of liability. Courts certainly look favorably upon employers who take measures like this.”

However, a problem lies with spam-blocking technologies that tend to filter legitimate content as well, a scenario that spam fighters refer to as “false positives.” Antispam blacklists, some of which punish entire Internet providers or hosting services in a guilt-by-association approach, frequently label legitimate e-mail as porn.

Allison Michael, who co-chairs the employment practice at Jones Day in Los Angeles, calls these “uncharted waters” for businesses because they must weigh the risk of accidentally losing important e-mail with the peril of substantial legal liability.

Michael says that depending on the size of a company and its resources, it may be able to take an alternate approach. An employer could establish “a written policy that prohibits employees from opening, and certainly from transmitting, an e-mail that is or appears to be unrelated to company business,” Michael said.

“In any scenario, it is unlikely that an employer would be required to completely eliminate the possibility of receipt into its system of pornographic spam e-mail, but it is safe to assume that an employer would be required to take reasonable and appropriate actions aimed at preventing it.”

Filters Amok

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. His argument hinges on the fact that mass e-mail should not count as sex discrimination because those sending the e-mail do not 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.”