Here’s a question that’s relevant to the debate over AOL’s system of charging for “certified e-mail,” and Hotmail’s system of requiring a $2,000 “fee” to get out of junk mail Hell: is it legal for a mail provider to label mail as “spam” or “junk mail” if they know (or could easily verify) that it’s only sent to users who have requested it?
Let me preface this by saying that if there’s one thing I’ve learned from following anti-censorship court cases and from my own personal experiences suing spammers, it’s that there are many grey areas where we don’t really have consistently followed “laws,” and it’s entirely up to the judge. So nobody’s opinion on the legality of blocking non-spam as spam can really be considered correct.
Discussions of this issue are often very simplistic, starting and finishing with the statement that the First Amendment doesn’t apply to private companies and doesn’t prohibit blocking of e-mail. True, but misleading; just because the First Amendment doesn’t prohibit it doesn’t mean that other laws might not prohibit it.
Here’s one way to look at it: When a mail provider knows your mail is not spam but it labels it as “junk mail” anyway, it is making a specific statement about the message. If the party making that statement knows that it’s false (or could easily verify that it’s false), then the statement meets the criteria traditionally proscribed for actionable false statements:
- The party making the statement knows that it’s false.
- The statement is not an “opinion,” rather, it has a specific meaning: that the message is being sent unsolicited.
- The statement caused actual damage – in this case, when your mail is sorted into the “junk mail” folder. This has the effect that most recipients will never see it.
On top of that, if the party making the false statement offers to stop doing it if you pay a $2,000 “fee,” I couldn’t find any reference indicating that asking for money was one of the criteria that made false speech actionable – but God, it certainly looks sleazy.
Of course as a longtime free speech advocate, I recognize that the bar for actionable false statements should be pretty high, but labeling someone’s mail as “junk mail” isn’t exactly contributing to the marketplace of ideas.
I think this goes to the crux of the impasse between people who think that the various spam-blocking systems are just “the marketplace in action,” and people who think they are potentially harmful. Talking about “market competition” between the different companies that say your newsletter is “junk mail” is like talking about “market competition” between the printing press and the Xerox machine for printing up flyers falsely calling your neighbor a rapist – you have no right to make the statement in the first place, so the talk about different means to do it is absurd. (You think the comparison is exaggerated? If you rely on help and support from your members, having your organization’s mail labeled as “junk mail” is about as damaging to your organization as being labeled as a “rapist” is damaging to a person – which is to say, in both cases, wiping you out completely if the statement is made continually.)