Liability for EMail

Von Clemens Kochinke*

I was contemplating my favorite EMail liability issues when I came upon a short report in the Legal Times, June 7, 1999, page 10, under the title "Is Vulgar E-Mail Contempt?" The issue falls into the category of "Go to Jail or have your attorney advance to Go and collect $200."

I'll skip my favorite which some of you know is the issue of general civil liability, risk of professional malpractice and potential disbarment for transmitting Microsoft Word and Microsoft Excel documents which are so susceptible to macro viri that reportedly 70% of all infections relate to them: Damage, duty of care, foreseeability, causality seem to be there, both under U.S. and German law, but we're still waiting for a verdict on liability for transmitting such documents.

The contempt-through-EMail issue arises in a D.C. divorce action. The husband EMailed a flaming missive blasting the judge, to "the entire D.C. judiciary", the LT wrote. The judge suggested that the unsolicited EMail violated a 1992 order prohibiting filings without court approval and began contempt proceedings.

Free speech advocates argue that the husband enjoy First Amendment protection because he should be free to express his opinions on the judiciary when the content of the message did not directly address litigated issues in the divorce matter and where he could not be certain that the 1992 order covered EMail.

Although not as pervasive as today, in 1992 EMail was a known quantity and available to anybody for little cost through CompuServe, AOL, BBSs, Fido, Arpanet/Internet and others.