4. Torts in Cyberspace PPT (2011)

TORTS IN CYBERSPACE : 

TORTS IN CYBERSPACE

What is “Tort” Law? : 

What is “Tort” Law? French for a “wrong” Social Contract theory Source: Caselaw

Types of Tort : 

Types of Tort NEGLIGENCE TORTS Lack of care and foreseeable outcome INTENTIONAL TORTS STRICT LIABILITY No fault-based liability

NEGLIGENCE : 

NEGLIGENCE DUTY OF CARE 2-stage test in the Spandeck case STANDARD OF CARE Objective “reasonable man” test RESULTANT DAMAGE Causal link + foreseeable damage (“remoteness”)

Spandeck Engr v.Defence Science & Tech Agency : 

Spandeck Engr v.Defence Science & Tech Agency The 2-stage test Factual foreseeability (1) Proximity – “closeness and directness of the relationship between the parties” – eg. Physical, relational, causal ~ relates back to foreseeability (2) Policy considerations – for and against such a “wrong” (ie. responsibility) to be imposed for the relationship and activity concerned

IT Context : 

IT Context TRANSMISSION OF VIRUS ONLINE MISSTATEMENTS

INTENTIONAL : 

INTENTIONAL TRESPASS DEFAMATION STALKING NUISANCE

IT Context : 

IT Context DIGITAL TRESPASS INTERNET DEFAMATION CYBERSTALKING ONLINE NUISANCE

Slide 9: 

ELECTRONIC CONTEXT

Slide 10: 

CASE STUDY #1 SONY ROOTKIT

Sony BMG Copy Protection Rootkit : 

Sony BMG Copy Protection Rootkit Sony surretitiously placed software through automatic installation on customers’ Windows desktop computers when they tried to play the CDs. The software interferes with the normal way in which the Microsoft Windows operating system plays CDs by installing a Rootkit which creates vulnerabilities for other malware to exploit. Outcome?

Slide 12: 

What was this incident about? What if the Rootkit was in fact used by a hacker to spread computer viruses? What are the possible torts that may be implicated?

Trespass : 

Trespass Forms: Trespass to Land (“real” property) “Trespass to Chattels (personal property) Requirements for Trespass to Chattels: Intentional & unauthorized dispossession, use or interference Of the property in question Causing damage

Slide 14: 

Assessment: What is the “chattel” when a computer system/server is the subject of the interference? What constitutes the act of “dispossession” or “interference”? e.g., any unwanted electronic signal? Or should there be a threshold test of “substantiality”? What is the “damage”? “harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected …”

Negligence : 

Negligence Duty of Care Standard of Care Causation Remoteness Defences? Is there consent? (voluntary and knowing assumption of risks) Is there an intervening cause? (unforeseeable, and therefore superseding intervening cause) Is there contributory negligence?

Slide 16: 

CASE STUDY #2: MALCOLMSON V. MEHTA

Malcolmson v. Mehta : 

Malcolmson v. Mehta Case involved an ex-employee harassing the ex-employer and his company staff via e-mails, SMS messages, telephone calls and postal mail. An injunction was given to restrain the ex-employee from continuing his acts on the basis of harassment as well as trespass and nuisance. Outcome?

Slide 18: 

Under the Miscellaneous Offences (Public Order and Nuisance) Act (Cap. 184), sections 13A and 13B deals with both intentional and non-intentional words or acts of “harassment, alarm or distress” by a person against another within physical or geographical proximity of that other person. Section 13C deals with acts of harassment where violence is likely to result, while section 14A makes it an offence to make harassing calls to emergency numbers specifically.

Slide 19: 

These provisions are of limited help specifically to stalking cases as they are limited in scope. They require face-to-face communications or physical proximity. They require a heightened level of threat due to the physical closeness of the parties. The words of behaviour is confined to “threatening, abusive or insulting” which does not take into account the type of conduct that can be perpetrated otherwise (e.g. gift giving, etc.), or online and through other electronic means. Section 13A requires specific intent “to cause harassment, alarm or distress to another person”, which a delusional or mentally unstable stalker may not possess. The penalty of a fine of a maximum of $5.000 is hardly adequate deterrence or punishment to stalkers, most of whom are motivated by other than pecuniary goals or act out of emotional wants rather than for rational reasons or by logic.

Slide 20: 

In this case, the plaintiffs had also pleaded a cause of action on the torts of trespass and nuisance in respect of his residence and office premises. It was also held that: “As concerns the area of law in the present case, protection was offered to the landowner against interference with enjoyment of his land by the tort of nuisance. Outside of his land he, as with any individual, is protected generally by the tort of trespass to the person and the tort of negligence.” [49] He trespassed by going to the office and residence. He committed nuisance by disturbing Malcomson’s peace and privacy.

Nuisance : 

Nuisance Types/Features: Public or Private Unreasonable interference of right to property Relationship with other laws: What is the difference from Trespass? Link to Privacy

Harassment : 

Harassment The JC first recognized the tort of harassment in Singapore by defining it as “a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause, worry, emotional distress or annoyance to another person”. [31] However, he gave the caveat that the definition is not meant to be exhaustive but was valid to the extent that it “sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law”.

Slide 23: 

Other modus operandi for online stalking: A uses surveillance cameras to spy on B, a colleague, and leaves flowers and presents at B’s apartment door. A persists in wooing B despite B’s requests for A to cease. B spurns A and A uses the Internet for revenge by attempting to solicit the rape of B by posing as B in sex-themed Internet chat rooms by placing personal ads in B’s name claiming that B fantasized about being raped, and responding to replies by providing B’s contact information. B informs the police and A repeatedly sending threatening e-mail messages and bragging on a blog that World Wide Web page that he will kill B and then himself. A in fact carries out the act but fails to die himself.

Slide 24: 

CASE STUDY #3: RAJA PETRA KAMARUDDIN

Nordin Kardi v. Raja Petra : 

Nordin Kardi v. Raja Petra On 26 March 2008, famous Malaysian blogger Raja Petra Kamaruddin, founder of www.malaysia-today.net was ordered by the court to pay general damages of RM4 million to the University Utara Malaysia and its vice-chancellor, Dr Nordin Kardi, for publishing libellous statement on his website two years ago. The group chief editor and editor of an opposition party’s newsletters were also ordered to pay RM3 million.

Internet Defamation : 

Internet Defamation “Classic” Defamation: A false statement about the “victim” Published to a third party Causing damage, e.g., tending to disparage/lower the “victim’s” reputation E.g. Defamation Act generally (also, UK Defamation Act) Is “Internet” Defamation different? How & where would a statement be “published”? Note related to the issue of jurisdiction & applicable law How & where would the “damage” be suffered?

Slide 27: 

What if the plaintiff is based in another jurisdiction? What other party may be implicated? What should be the legal responsibility of these parties?

Issues : 

Issues Jurisdiction – consider the approaches taken by the UK and Australian courts Freedom of speech Differences between US, UK and Singapore defamation laws Interface between free speech and privacy Intermediary liability (e.g., ISP as “publisher”) – compare differences between US, EU(UK) and Singapore laws

Dow Jones v. Gutnick : 

Dow Jones v. Gutnick Extent of liability in context: Jurisdictional reach of the law and the Digital ‘space’ Conflict of laws issues: Appropriate forum Applicable law

Country Comparison : 

Country Comparison In the US Pro-defendant and free speech The law defines libel as a false statement of fact, made with the requisite state of mind, that causes harm. In the case of a public figure, the state of mind is "actual malice" (defined in Supreme Court precedent as a subjective awareness that the statement of fact is probably false. An article need not be true in every detail, as long there is substantial truth (i.e. believed to be false and actually false). Protects satires and parodies In the UK and Singapore Pro-plaintiff and reputation The subjective state of mind (intention) is not an element of the civil course of action (cf. criminal defamation) There is no malice requirement Elements: Defamatory statement/form/innuendo (objective standard = community benchmark) Reference to the plaintiff (determinable individual) Publication (re-production) [cf. distribution; mere dissemination]

Godfrey v. Demon : 

Godfrey v. Demon Extent of general liability of conduit: Role of Content Provider v. Access Provider Publication v. Distribution Publication v. Mere Dissemination * exceptions exist where specifically provided in other legislation (e.g. Copyright Act)

Slide 32: 

INTERMEDIARIES

Slide 33: 

US: Statutory Immunity under section 230(c) of the Communications Decency Act No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be … harassing, or otherwise objectionable… or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to [such] material.

Slide 34: 

Singapore: ETA 2010 section 26(1) A network service provider shall not be subject to any civil or criminal liability under any rule of law in respect of third-party material in the form of electronic records to which he merely provides access [an issue of control] if such liability is founded on (a) the making, publication, dissemination or distribution of such materials or any statement made in such material; or (b) the infringement of any rights subsisting in or in relation to such material.

Slide 35: 

(2)   Nothing in this section shall affect — (a) any obligation founded on contract; (b) the obligation of a network service provider as such under a licensing or other regulatory regime established under any written law; (c) any obligation imposed under any written law or by a court to remove, block or deny access to any material; or (d) any liability of a network service provider under the Copyright Act (Cap. 63) in respect of — (i) the infringement of copyright in any work or other subject-matter in which copyright subsists; or (ii) the unauthorised use of any performance, the protection period of which has not expired. (3)   In this section — “provides access”, in relation to third-party material, means the provision of the necessary technical means by which third-party material may be accessed and includes the automatic and temporary storage of the third-party material for the purpose of providing access; … “third-party”, in relation to a network service provider, means a person over whom the provider has no effective control.

Slide 36: 

UK (EU): Regulation 17(1) of the E-Commerce Directive Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider: (a) did not initiate the transmission; (b) did not select the receiver of the transmission; and (c) did not select or modify the information contained in the transmission.

Questions : 

Questions Compare and contrast the: Socio-political background of the country/region Approach (pyramid or lateral) Scope (what type of intermediary is protected)