I write in response to the article written by Dr Gerrie Ebersöhn “Is Your E-mail Being Rejected?” (Computers and Law February/March 2004: Volume 14, Issue 6, pp 21 – 23), which was very interesting and stimulating, and has added to the debate surrounding the issues relating to e-mail. With a view to extending the debate, I offer a few comments that may or may not be considered to be relevant, but with the aim of helping to discuss the issues raised by Dr Ebersöhn.
I am not sure if I can agree with the full force of Dr Ebersöhn’s argument. The issues relating to e-mail are no different to sending and receiving mail through the postal service. Where an individual or business decides to send a catalogue, magazine or newsletter by post that is not recorded, the sender has no claim against the post office for loss of business. I concede that the position will be different if the item is sent by recorded or special delivery, or where it is sent by a courier service.
Why should the position be different for similar services or products sent by way of e-mail?
An Internet service provider is in a more difficult position than a postal carrier. They are dammed if they fail to prevent e-mails containing viruses or unwanted content from reaching their customers, and, it seems, liable if they refuse to permit certain types of e-mail through their system.
Most recipients of e-mail have a duty to prevent viruses and other attacks on their computers and communications infrastructure. This is why many organisations have filters to prevent unwanted e-mails from entering their communication system and disrupting it, either against attacks by viruses or through large volumes of unwanted e-mails that take time and money to delete. An organisation can be considered to be failing in its obligation where it fails to prevent such attacks by not using anti-spam and anti-virus software. In all probability, many organisations may welcome the attempt by an Internet service provider to act as a first line of defence against such unwanted e-mail traffic.
There may be occasions when a recipient might wish to subscribe to a legitimate newsletter sent by way of e-mail, and the sender’s address is blocked by the provider. In such circumstances, the recipient will need to discuss the issue with its Internet service provider. Where the provider fails to respond or will not permit the relevant e-mail to reach its destination, it may be correct that an action could lie against the Internet service provider if it fails to provide a satisfactory reason for not delivering the relevant e-mail. If such were to occur, then the decision to take legal action by the seller may well be determined by the quantum of any loss. It is possible that the recipient of the e-mail may also have an action against the Internet service provider for breach of contract.
There is a delicate balance to be struck between preventing damage and additional costs by wading through reams of unwanted e-mail, and putting provisions in place to reduce the risks. From a pragmatic point of view, it hardly seems that the provider of an e-mail newsletter will have a case against an Internet service provider where the provider has good reason to prevent e-mails from filtering through its defences.
Stephen Mason
Barrister and Mediator, Associate Research Fellow, Institute of Advanced Legal Studies, 2003 – 2004.
