Judges split over Intel insider’s e-mail trespass appeal?

Background

Ken Hamidi spent nine years as an Intel engineer. Following a work-related road accident he took a medical leave of absence in 1992 and, when fired three years later, began a crusade against the company he described as treating him like an enemy. He claimed compensation for back pain. Intel hired a private investigator who secretly filmed 55-year-old Hamidi changing a wheel on his car, despite the alleged pain. Hamidi claims that the investigator slashed his tyre to set him up.

The mud-slinging got worse. Hamidi accused the company of brainwashing employees, sending out subliminal messages, driving some employees to the brink of suicide. He also accuses Intel of discrimination on the grounds of age, disability, gender, race, and ethnic origin.

Hamidi expressed these grievances on six separate occasions, by sending an e-mail to all Intel employees. Intel fought back. It won a court order, forbidding Hamidi from sending any more e-mails to company employees on the grounds that he was "trespassing" on its private property. The court said that, while "trespass to chattel" (a chattel being any property other than freehold land) requires some harm to the property – in this case Intel's computers – that standard was met by the loss of productivity that Intel suffered as its staff dealt with Hamidi's messages.

This wouldn't stop Hamidi putting his opinions on the internet; but Intel said it wanted to make sure that he didn't "upset" its current employees.

The court agreed with Intel, deciding that its e-mail system was not a public forum, even though it was connected to the internet. However, the California Supreme Court then agreed to hear Hamidi's appeal against the order.

At issue are the laws of free speech and trespass, not the accuracy of Hamidi's allegations. Some argue that Hamidi's e-mails to Intel employees should be allowed as free speech, albeit on a private network. Others argue that the court order is reasonable and analogous to a bar ejecting a rowdy customer.

Wednesday's hearing

Yesterday, the Court heard oral arguments from both parties. According to US legal journal The Recorder, three of the seven justices appeared to support Intel, another three indicated support for Hamidi, and the justice carrying what would be the swing vote "didn't tip his hand."

Justice Joyce Kennard told Intel's lawyer: "My problem is that Intel has not shown actual injury to its ability to use its computers."

What would happen in the UK?

Adopting the trespass argument to prevent the sending of e-mails is not unique. In England in 1999, Virgin Net sued a former customer, Adrian Paris, after Paris allegedly sent around 250,000 junk e-mails using Virgin Net's system. As a result, Virgin's entire e-mail service was blacklisted by spam filters, causing loss of reputation.

The company sued, arguing trespass (and breach of contract). However, the case settled out of court, so there was no opportunity to see how an English judge might react to these arguments.