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  • 1. Civil Wrongs In Cyberspace (Minimising the risk of a claim in Tort) Chris Patterson Barrister [email_address]
  • 2. What is a Tort?
    • Civil wrong other than a breach of contract or trust
    • A person does harm to another without committing a criminal offence
    • Examples
      • Defamation
      • Trespass
      • Negligence
      • Intentional infliction of harm
      • Harassment
  • 3. Defamation
    • A person is liable in defamation if:
      • They make a defamatory statement
      • The statement relates to the defendant
      • The statement is published
    • A defamatory statement is:
      • One which tends to lower a person in the estimation of right thinking members of society generally; or
      • Tends to cause himher to be shunned or avoided; or
      • Causes the person to be exposed to hatred, contempt or ridicule; or
      • False and discredits a person
  • 4. Form of Statement
    • A statement may be in the form of:
      • Words
      • Pictures
      • Visual images
      • Gestures
      • Other form signifying meaning
  • 5. Publishing
    • Liability arises from the publishing of a defamatory statement to another person other than the defendant
    • The internet has created additional mediums upon which a statement can be published
      • Webpages
      • Emails
      • Newsgroups
    • A plaintiff is entitled to sue each publisher
  • 6. Case Examples
    • Rindos v Hardwick
      • Defamatory statement posted on a bulletin board hosted in Western Australia
      • Plaintiff awarded $40,000
    • Macquarie Bank v Berge
      • NSW Supreme Court refused to grant an injunction relating to a defamatory website hosted in the US due to jurisdictional argument
  • 7. Case Examples Cont
    • Godfrey v Demon Internet Limited
      • Plaintiff wrote to the ISP complaining that a usenet group “soc.culture.thai” contained a message that defamed him
      • The message was not willfully removed by the ISP
      • The Court held that each message posting constituted a publication.
  • 8. Case Examples Cont
    • Cubby v CompuServe
      • Court held ISP not liable as it was only a distributor
      • No editorial control exercised by ISP
    • Oakmont Inc v Prodigy Services
      • Could held the defendant liable for a defamatory statement on one of its bulletin boards because it held itself out as exercising editorial control
  • 9. Case Example cont
    • O’Brien v Brown
      • The defendant posted an allegedly defamatory statement in a newsgroup
      • Plaintiff is claiming $85,000 in general damages and $55 in punitive damages
  • 10. Innocent Dissemination Defence
    • US – Community Decency Act
    • NZ – section 21 Defamation Act a distributor or processor has a defence if
      • Person did not know of the defamatory statement
      • Person did not know the matter was of a character likely to contain defamatory material
      • The person’s lack of knowledge was not due to any negligence
    • ISP inclusion in section 21 removed from ET Bill
  • 11. Electronic Trespass
    • Generally speaking the tort of trespass provides the owner of property with the right to exclusive possession and use of that property
    • Electronic Trespass could apply to:
      • Spamming
      • Web crawling
      • Denial of service attacks
    • US Courts not requiring any direct physical interference has expanded the tort beyond its traditional scope.
  • 12. Case Examples
    • eBay v Bidder’s Edge
      • Court granted an injunction preventing Bidder’s edge from crawling eBay’s auction site for information
      • Bidder’s Edge’s bots accessed eBay 100,000 per day
      • eBay claimed BE’s activity constituted up to 1.53 percent of processed requests and up to 1.10 percent of total data transferred
  • 13. Case Examples Cont (eBay)
    • 2 factors to support a claim in electronic trespass:
      • The defendant intentionally and without authorisation interfered with the plaintiff’s interest in its computer system; and
      • That the defendant’s use resulted in damage to the plaintiff
    • The court held that damage did occur because BE deprived eBay of the ability to use the proportion of its servers and resources for its own exclusive purposes
  • 14. Case Examples Cont
    • Ticketmaster Corp v
      • Ticketmaster was seeking an injunction to restrain from using bots to crawl its site.
      • Court declined to grant the injunction because:
        • There must be some physical harm or obstruction of its basic function neither of which could be established on the evidence presented.
  • 15. Case Examples Cont
    • Parker v CN Enterprises
      • Court granted an injunction restraining the defendants from using the plaintiff’s “or anyone else’s” domain name in spam mailing.
      • Defendants had sent spam emails using the plaintiff’s domain as the return address
      • The plaintiff received, as a result of the spam, over 5000 irate messages
      • The Court held that defendants unauthorised use of the plaintiff’s address constituted both nuisance and trespass
  • 16. Negligence
    • Elements
      • Existence of a duty of care
      • Breach of that duty resulting in damage
      • The damage being sufficiently proximate to the breach of duty
    • The Internet is hierarchical in structure ranging from vBNS to end users.
    • Ones direct neighbour is the controlleruser of the next link. An ISP may have several million neighbours at one time
  • 17. Negligence continued
    • ISPs
      • Negligent non delivery of email or loss of data
      • Negligent loss of data as a web host
    • Viruses and Worms
      • Negligent filtering, monitoring or failure to warn
      • Computer Economics estimated that the “love bug” virus cost in excess of $10 billion
  • 18. Harassment
    • Online harassment can occur through a number of mediums including:
      • Email
      • IRC
      • Websites
    • The internet has the following characteristics which encourage harassment:
      • Disproportionate presence of men online;
      • Anonymity
      • One dimensional communication
      • Type of individual who uses the internet
      • Jurisdiction (“Bell and La Rue”)
  • 19. Harassment and related Torts
    • The English Court of Appeal have held that harassment is a separate tort and can be relied upon when seeking relief against actions that constitute prosecution but not threats
    • The Harassment Act 1997 includes the right to obtain injunctive relief only in civil actions
  • 20. Harassment and Related Torts
    • Related Torts
      • Breach of statutory duty (Employment Relations Act, Human Right Act and Health and Safety in Employment Act)
      • Nuisance
      • Intentional infliction of emotional harm
    • Relief is primarily injunctive however, damages not covered by ACC bar in non physical injuries
  • 21. Recent NZ case
    • Author Rhonda Bartle of New Plymouth was reported last week as being the victim of “Cyber-terrorist stalking”.
    • The alleged stalker, Peggy Phillips 84, a former Broadway publicist has had a trespass order taken out against her and Mrs Bartle has laid a complaint with Californian police about the harassment which included emails.
  • 22. [email_address] © 2001