Introduction
Owners of intellectual property have a duty to ensure that the commercialization of their property does not, in any way, conflict with the law. In the Information Technology sector, programmers should ensure that the programs they develop are in agreement with the provisions of the law and that they do not develop programs that will be used in illegal activities like hacking. Similarly, providers of internet services should ensure that the materials that they post on their websites are in agreement with the law. For instance, owners and operators of blogs, websites and social networks are partly liable for defamatory statements posted on their sites depending on their level of involvement in the creation of the defamatory information. This paper analyses the interconnection between the legal liability of owners of intellectual property and the use of the intellectual property by looking into internet service provision and defamation on the internet.
Cyberlibel
With the increased popularity of internet blogs and social networks, the rate of defamation on the internet has also increased. Defamation generally refers to false and negative representation of another person’s character leading to a bad reputation. It takes two main forms: slander and libel. Slander is in form of spoken language while libel is written. The most common form of defamation on the internet is libel. This is because of the written evidence that blogs, websites and social networks provide to their users.
One of the factors that have facilitated the increase of cyberlibel cases is the ever-increasing popularity in the use of computers and the internet. The internet now gives services spanning virtually all realms of life. People use the internet to shop, to find news, to run business transactions, for entertainment etc. This implies that the internet is being accessed by a great number of people with various levels of awareness of the law. The effect of this is that some ignorant people may use the internet illegally by posting defamatory materials on the internet. Such information will be accessed by a lot of people and thus it will have adverse effects. This behavior should be strictly discouraged to ensure that technology is used to achieve the goals it is intended to achieve. In most cyberlibel cases, the defamed person has information on the sites that he/she can use to prove the offence. Once the person proves that he/she has been defamed, he/she is normally entitled to damages with liberality.
Owners of Blogs
Owners and operators of social networks and blogs have a moral and legal responsibility to control the kind of information posted on their sites. To some extent, they make have legal liability for defamation occurring in their sites. This is despite the fact that they normally have immunity from liability arising due to defamatory statements on their sites. The stated immunity applies if the owners of these intellectual properties (sites, blogs and social networks) were not actively involved in the posting of the defamatory statements. More about the immunity is explained in the CDA (Communications Decency Act). Contrarily, if the operators or owners of websites expressly ask for information which ultimately turns out to be defamatory, the aforementioned immunity will not apply (Cram, 2002, p. 3).
In light of the discussed issue, there is a great need for owners of internet blogs and operators of interactive websites to be very careful on their level of involvement in service delivery. This is because users can maliciously or otherwise post defamatory statements on the blogs and websites which may lead to liability on the side of the owner/operator. For instance, a defamatory profile created in a social networking site may lead to liability to owners or operators depending on the level of involvement of the operator in the creation of the profile. That is, if the operator/owner expressly asks for specific information which is prone to defamation, the aforementioned immunity will not apply and thus the operator/owner will be liable for the defamatory statements (Cram, 2002, p. 5).
Providers of internet services are also subject to a different type of liability; notice-based liability. This type of liability is responsible for the less regulative measures put in place by service providers to avoid the creation of defamatory materials on their sites. This is because if service providers struggle to identify defamatory materials and avoid the same on their websites, there will be stronger grounds for defending liability to defamation since there will be constant notices to materials that are likely to be defamatory. Internet service providers therefore have the responsibility of reducing their liability to defamation by striking a proper balance between regulation and precautionary non-regulation (Gomez, 2000, p. 1).
Liability of defamer
The defamer is the most obvious liable person in a defamation case. Just like in other defamation cases, the person who posts things that falsely damage a person’s reputation is liable for such materials. However, it is normally difficult to identify the person who posted such materials and if the person is known, other questions may arise like questions regarding jurisdiction.
Although some jurisdictional issues may arise in cases where the defamer does not expect his/her postings to affect different jurisdictions, such cases favor the defamed. Thus a defamer who posts defamatory materials on the internet about a person in a different state will be charged in the victim’s state. However, some courts may reject personal jurisdictions based on the nature of the case. For instance, a Pennsylvania court declined to hear a case (Betting V Tostigan) about a New York defamer who had defamed a Pennsylvania complainant on a betting website. The court decided that, since the statements were directed at New York, Pennsylvania had no jurisdiction to handle the case.
Just like the providers of internet services, users of internet services are also given some immunity by the CDA (Communication Decency Act). Users who post defamatory materials on websites and blogs are thus immune from defamation suits since it is only the originator of the materials who should be held liable. This fact was enforced by the Supreme Court in California in the Barret v. Rosenthal case where the defendant was offered immunity since she was not the originator of the defamatory materials. This case raised a lot of concerns about the over-protectiveness of the CDA to defamation defendants (Hilden, 2006, p. 1).
Court Cases
An example of a case about defamation on the internet is the stated Barret v. Rosenthal case. The complainants were doctors dealing with frauds in the health sector. They had sued another operator of a different website who had posted materials on a newsgroup which she herself did not operate. The materials did not recognize the doctors as advocates of health ethics and they disparaged the professional competence that the defendants held. The case eventually narrowed to one material that was posted by the defendant on her newsgroup. The message had been received by the defendant from a private source and it had defamed the plaintiffs but the defendant went ahead and posted it. The court decided that the defendant was immune from a defamation case since the defamatory message had a different originator other than the defendant. In this case, the fairness of accusing the originator of the message since the originator was not responsible for the posting of the materials on the newsgroup (Hilden, 2006, p. 1).
Another example of a court case related to the above discussion is Carafano v. Metrosplash.com. In this case, the defendant operated the website matchmaker.com. The website was meant to make single people meet singles of the opposite sex and possibly start dating. This was facilitated by profiles of prospective single persons that were collected using a detailed questionnaire on the site. The plaintiff spotted a false profile about her that was created by an unknown user using the extensive questionnaire and thus she sued the company. It was ruled out that the creation of the detailed questionnaire by the company was an effort to actively participate in information development and thus the defendant had participated in creating the defamatory profile. In addition to that, the court stated that the fact that the defendant operated information provision services and thus the immunity provided by the CDA did not apply. This case evidences the fact that the immunity accorded to service providers and blog operators can be revoked depending on the level of activity of the service providers (Nicolas, 2007, p. 1).
The last example of a case on this subject is the Griffis v. Luban case. It is an example of how jurisdictional issues are solved in defamation cases. The court of appeal in Minnesota decided that the state of Alabama had the right to exercise jurisdiction in the case where a Minnesota resident had defamed an Alabama complainant on the internet. The defamation had targeted the plaintiff’s professional profile in a newsgroup on the internet. The accused had posted several defamatory messages with the aforementioned intention to tarnish the professional abilities of the complainant. The Alabama court had awarded damages worth $ 25,000 to the complainant but she sought enforcement in Minnesota. The appellate of Minnesota court held on to the decision arrived at by the Alabaman court since the case was under Alabama jurisdiction. It was further added that since the defendant had the knowledge that the defamation was limited to Alabama and she expected to be sued there, it was within the jurisdiction of the Alabama court to handle this case (Hoffman, 2006, p. 1).
Analysis of the effects of the CDA
The set precedents on the CDA have made courts interpret the immunity to include people who republish defamatory information intentionally. The congress passed this law since the preexistent situation was worse. Before the CDA was enacted, hosts and operators of internet services used to ignore the messages that were posted on the sites that they hosted. They avoided looking at material on which there were complaints and thus they avoided editing the materials which could make them liable. The result was that the internet services they offered to their clients were uncontrolled and all kind of information was posted on them. It can thus be argued that, although the CDA has brought about some controversial issues, it was necessary to pass it since it brought some control to internet service provision (Hoffman, 2006, p. 1).
In passing the CDA, the Congress was intending to put some regulation on the kind of materials that are posted on websites and end the “free-for-all” (Hilden, 2006, p. 1) era. They thus structured the Act such that operators of websites will be able to handle defamation complaints by ensuring that they read content before deciding on whether to post it on their sites. This was intended to depend on whether the materials are in conformity with the rules o the site (Gomez, 2000, p. 1).
The idea of determining whether a post qualifies for de-posting may sound like some kind of censorship because the person determining whether to de-post is not part of the government. However, the censorship comes as a result of the function of the providers of internet services to edit material before posting it on their sites. The Congress thus wanted to phase out the online public forums in which people used to share all kinds of ideas. The power given to internet service providers to edit material before posting it on their site can be seen as an effort by the Congress to regulate the kind of information shared on the internet while at the same time promoting freedom of speech. In a nutshell, the CDA was a big step towards regulation of online information sharing and thus the congress should consider making the necessary amendments to this Act in order to close the loopholes it has left for internet defamers (Nicolas, 2007, p. 1).
Conclusion
The biggest challenge in the enforcement of defamation on the internet is the fact that it is usually difficult to prove to the authorities that the defendant is responsible for the postings. Once this challenge is overcome, the case can be easily solved and jurisdictional issues can be settled. Attorneys who have dealt with a number of Cyberlaw cases can predict the results of such a case with reasonable precision. On the other hand, if the defendant misses an attorney who can find evidence in such a case, the case will most probably fail due to lack of evidence.
With the ever increasing popularity in the use of technology and the World Wide Web, there have been several instances of misuse of these technologies. One of the ways in which technology is being misused is the discussed habitual posting of defamatory materials on the internet by users. Virtually all parties involved in provision of internet services are privy to ensuring that such materials are not posted on websites and blogs. Owners of such blogs should ensure that they are not actively involved in getting information which can possibly be defamatory from users since this way, they will be held liable for any defamatory materials posted on such sites. On the other hand, users have a moral duty to avoid the posting of malicious and defamatory statements.
Reference List
Cram, A. (2002). Injurious falsehood and defamation on the internet. Web.
Gomez, E. (2000). Defamation on the internet. Web.
Hilden, J. (2006). Defamation on the internet. Web.
Hoffman, I. (2006). Defamation on the internet. Web.
Nicolas, D. (2007). Defamation and Slander on the Internet. Web.