January 1, 2003

On the morning of 1st September 1768 a farmer, Cornelius Simpson, came upon a hog eating the wheat of his field just outside Diss in Norfolk where there is now the A140 dual carriageway. Incensed, he started beating the hog and, with his man servant, drove it away and impounded it in a wooden pound.

The owner of the hog, one John Dye, claimed its value, bringing the action in ‘trespass to goods’. This was successful (£4 being awarded), the Court acknowledging the action of the defendants in touching and beating the hog was indeed a trespass to that property.

It is this ancient law – dating from the 1400s- which has now been dusted down and is the centre of a bitter dispute between Intel (the world’s biggest microchip maker, market capitalisation $100bn) and a former Intel engineer over thousands of e-mails sent by him to Intel’s employees worldwide. The case is being watched with alarm and confusion by the e-commerce community: Intel’s claim is that an unsolicited email landing on one’s desktop is a trespass to goods, and if so then huge amounts of email traffic could potentially be unlawful – precipitating the virtual end of much of the new forms of direct marketing.

The case is already being heralded as one of the most significant ever for the nascent law of the Internet and could have wide-ranging and damaging consequences far beyond its California State boundaries.

Ken Hamidi, the claimant, is a former officer in the Imperial Iranian Air Force who moved to California in 1978 seeking as he proclaims ‘freedom and prosperity’. He was employed at Intel between 1986 and 1995 as an engineer but was then dismissed.

Refusing to let his grievance rest, he sent on six different occasions over 30,000 e-mails to Intel employees alleging what he believes are discriminatory employment practices and mistreatment of workers. Intel’s reaction has been to obtain an injunction preventing any further delivery of e-mails on or through its e-mail system, alleging that they are a trespass to chattels. The receipt of an unwanted email, it says, is unauthorised interference with property (its intranet) and time spent in deleting it – however small – is a form of damage.

The response from Hamidi is that this is simply an artificial mechanism to silence him; he has a right to free speech which is being interfered with and so the case has become a cause celebre to be heard in the California Supreme Court. Barred from sending further e-mails under the preliminary injunction, Hamidi has now taken to delivering messages (on floppy disk) by horseback on his grey horse (‘Pontyum IV’) following an old mail route to Intel’s headquarters in Santa Clara.

Trespass to chattels or goods is one of the backwaters of civil law used historically in relation to dogs which run after deer in parks, chasing bulls and, more recently, by a hotel group to recover monies from people who have slept in their beds without paying.

In the US, this archaic tort has been taken up as a desperate attempt to fashion an anti-spamming law. Claims have already been successful at District Court level across the USA: CompuServe secured judgment against Cyber Promotions for their relentless use of the ISP for its bulk e-mail. And AOL, too, have utilised a trespass claim against LCGM, a Michigan based company which had sent approximately 92 million separate e-mails promoting pornography sites. Similar claims have also been brought in Canada, New Zealand and Australia.

Although this cause of action might be seen to be an heroic attempt to utilise an old law for what has become a novel but worrying phenomenon, it is a blunt instrument to counter spamming which remains (despite data protection legislation) a significant problem. If Intel’s assertions regarding trespass are accepted then, although bulk e-mailing and unsolicited fax advertisements might be blocked, there could well be a downside.

Major e-commerce retailers wishing to send product updates, corporations trying to prevent an overload of their systems by e-mail services, employees’ in-boxes of personal mail and even hyperlinks where viewers are directed onto other sites could all be in jeopardy of legal action. In practical terms, companies sending out promotions, newsletters and direct advertising by e-mail would have to obtain the consent not only of the individual but also their employer if the mail were directed to the employee’s business address.

Amicus briefs have been filed by numerous civil liberties groups and the Internet community, with teams of lawyers trawling over, once more, 500 years of old British and New World precedents.

But while Ken Hamidi follows the old pony express trail into Santa Clara, it is pleasant to reflect that pig farmers in Norfolk may have played their own part in fashioning the law of the Internet.

ROBIN FRY is an intellectual property partner at Beachcroft Wansbroughs.