Civil Wrongs In Cyberspace(Minimising the risk of a claim in Tort)

Chris Patterson

Barrister

chris.patterson@eldonchambers.net

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

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 him\her to be shunned or avoided; or– Causes the person to be exposed to hatred, contempt or

ridicule; or– False and discredits a person

Form of Statement

• A statement may be in the form of:– Words– Pictures– Visual images– Gestures– Other form signifying meaning

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

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

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.

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

Case Example cont

• O’Brien v Brown– The defendant posted an allegedly defamatory

statement in a newsgroup nz.org.isocnz– Plaintiff is claiming $85,000 in general

damages and $55 in punitive damages

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

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.

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

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

Case Examples Cont

• Ticketmaster Corp v Tickets.com– Ticketmaster was seeking an injunction to

restrain Tickets.com 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.

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

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 controller\user of the next link. An ISP may have several million neighbours at one time

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

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”)

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

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

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.

chris.patterson@eldonchambers.net

© 2001