Employers in the gun over email porn

By DOUG GRIFFITHS

Employers who do not take steps to block offensive spam from arriving in workers' inboxes may be open to sexual harassment claims from their staff.

Pornographic or offensive images appearing on a worker's screen by way of unsolicited or junk email (spam) could also qualify as evidence of a "hostile work environment", a situation contravening the Human Rights Act.

Phil Butler, of Phil Butler and Associates, a Christchurch firm specialising in employment law, says problems could arise for bosses because the laws make no provision for sexual harassment that is delivered electronically, often from unknown sources.

"It could be argued that the source of the spam is not a client or customer of the employer, or conversely, it could be argued that the words 'customer' or 'client' are sufficiently broad to cover the source."

The real question would be what steps the employer took to stop the material arriving - although Butler points out that the Human Rights Act appears to make this a defence only for acts of sexual harassment committed by another employee of the firm.

"It can be seen that the act predates the emerging problem of spam."

If employers were to avoid becoming a test case, they should take whatever steps were available to prevent an employee being exposed to offen-sive email.

"There may be costs associated with this, but they pale alongsidethe legal costs involved in liti-gation."

Internet watchdog InternetNZ said the possibility of legal action based on spam was "silly" when there were systems able to block most offensive material, even though some of it would inevitably getthrough.

"The standard measures such as filters and blocking known spamming domains seems to be around 80-90 per cent effective," said executive director Peter Macaulay.

"I find it incredible that an employee can sue an employer for letting spam into the employee's inbox, unless of course the employer has done something nasty like sending the email address to known spammers.

"Taking action against your employer for offensive email is like suing them because of an offensive phone call from an irate cus-tomer."

John Coyle, of Legal Alternative in Auckland, said another issue was the reason offensive spam had been received.

"Has another employee deliberately accessed a site resulting in the original receipt of offensive material? If so, then suitable action can be taken against the employee for breach of the employer's rules."

Coyle doubts whether anyone will ever take a successful case as employees would be obliged to provide the employer with the chance to rectify any harassment.

Several large companies asked to comment were unwilling to outline steps taken to stop spam infiltrating their networks.

Natalie Dyer at Carter Holt Harvey pointed out that it was against company policy to talk about what she referred to as a "security issue".

The Southland Building Society uses filtering software, but according to Martin Gale, head of technology services, the task of deciding what mail actually gets through the system is left up to the helpdeskteam.

"A team reviews the blocked emails to determine if these should be forwarded on."

In the United States, while no case has been tested in court yet, it is against federal employment laws for employers not to protect staff from offensive material in the workplace.

It has been noted that even if companies are not the source of such messages, they could be liable for hefty civil fines if managers know that pornographic spam is a problem and fail to take action.

How the law stands:

* New Zealand has no anti-spam laws or specific provision for electronically delivered offensive material. The Government is investigating whether legislation being considered in Australia could work here.

* Information Technology Minister Paul Swain says effective anti-spam actions require a mixture of approaches - technical (eg, filtering) and educational, as well as regulatory.

* Sexual harassment is unlawful under the Human Rights Act 1993 and the Employment Relations Act 2000. When there is an allegation of harassment arising from the workplace, the employer must investigate and take appropriate action.