MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE Defamation on the Internet “Defamation”, Arts Law Centre [Online: Accessed 4th February 2004 URL: http://artslaw.com.au/reference/info05/ ] “Gutnick and Beyond”, FindLaw [Online: accessed: 28th May 2003 URL: http:// www.findlaw.com.au/magazine/Article.asp?id =428 ]
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MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Defamation on the Internet
“Defamation”, Arts Law Centre [Online: Accessed 4th February 2004 URL: http://artslaw.com.au/reference/info05/ ]“Gutnick and Beyond”, FindLaw [Online: accessed: 28th May 2003 URL: http://www.findlaw.com.au/magazine/Article.asp?id=428 ]
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
Defamation A communication
from one person to at least one other, that lowers the reputation of an identifiable
third person, where the communicator has no legal
defence. The law of defamation aims to balance free
speech with the right of an individual to protect their reputation
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Communication Must be made ('published') to at least one
person other than the plaintiff. The intention of the communicator does not
matter. Liability for defamation can arise from errors.
Everyone involved in the communication is equally liable
No defence to argue that you are only repeating rumours or a comment made by somebody else
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Identification The person must be identified False names are no defence if the person can
be identified by other means. Identification can be accidental A class of people cannot be defamed, but a
statement denigrating a group may be defamatory of a member of that group
A dead person cannot be defamed Corporations can also sue for defamation.
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Reputation 'Does the communication lower the plaintiff's
personal or professional reputation, ridicule them, or lead others to shun and avoid them?‘
This is judged from the viewpoint of 'ordinary decent people in the community taken in general' and in light of contemporary standards.
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Imputations Court considers the 'imputation', this might not
be what you meant to say. The literal meaning of the communication is not
the only meaning that is considered. The court looks at what it thinks the ordinary
reader or viewer would have understood the communication to mean.
Fair Comment Statement is 'fair comment' on a matter of public
interest. Must prove:
It is comment - an opinion, criticism, deduction, judgment, remark, observation, or conclusion
The facts upon which the comment is based must be stated unless they are widely known
The communication has to be on a matter of public interest
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Justification If your imputation is found to be defamatory, the
law presumes it to be false. To use this defence you have to prove it's true. This can be difficult as you can only use
evidence that is admissible in court In some states you also have to prove that your
publication was for the public benefit
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Qualified Privilege Applies when you have an interest or a legal,
social or moral duty to communicate something to a person and that person has a corresponding interest or duty to receive the information.
The defence will fail if you were actually motivated by malice to make the communication
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Absolute Privilege Protects reports of court and parliamentary
proceedings
Innocent Publication For those such as newsagents (and possibly
ISP’s) who cannot reasonably be expected to be aware of the defamatory content of material they distribute
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Before you publish Consider the communication as a whole
including any headlines or illustrations. Consider the context. Which groups or individuals have been identified? What imputations arise? Are they defamatory?
See if editing or clarification can remove any unintended defamatory imputations;
Check who is identified in the communication. Potential problems can be avoided by narrowing the scope of the article, or removing details that can lead to identification;
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Before you publish (cont.) What defences might be relevant? If it is meant
to be comment, ensure that it is clearly identified as such (for example by adding 'In my opinion‘) and that the facts on which it is based are stated or obvious;
If you want to argue that the defamatory imputations are true, how can they be proved? What has been done to verify their accuracy? Remember proof has to be to the stringent standards demanded by a court. Sources need to be first hand (what if they wish to remain confidential?).
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DefamationDow Jones v Gutnik – High Court of Australia The law governing Internet defamation cases is the
same as for other types of media. If a defamation case involves more than one jurisdiction,
the Court will apply the law of the place in which the cause of action arose.
Each time a new person accesses and reads defamatory material on a web site, a new cause of action arises and the place in which each case of action arises is the place of the reader.
Discussed in Forder & Quirk at pp 36 & 37
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Defamation (cont.) An Internet publisher will need to consider the
law in many jurisdictions Freedom of Speech defences may not apply Conflicts in international law
US decisions that each mass media publication gives rise to only one cause of action and that the applicable law is that of the place of person that publishes the material.
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CyberCrime
See: Brenner Susan W, 2001, “Cybercrime Investigation and Prosecution: The Role of Penal and Procedural Law”, [Online: Accessed 3 February 2004 URL: http://www.murdoch.edu.au/elaw/issues/v8n2/brenner82.txt ]
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The Cybercrime Challenge Enforcement agencies lack tools Lack of specific cybercrime offences Lack of appropriate procedural rules Transnational nature of cybercrime
Lack of international agreement Lack of uniformity prevents extradition
Offending often involves multiple and geographic diverse offences
High cost
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Types of crimes Crimes against the person Crimes against property Crimes against the administration of justice Crimes against the State
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Preparing for Cybercrime Most criminal law is generic Procedural law differs widely Cybercrime can involve
Using a new means to effect a traditional crime
A completely new type of offending A survey of 52 countries found that 33 had yet to
update their laws to address cybercrime
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Crimes Against the Person Non-Sexual Crimes
Murder Assault Threats
Sexual Crimes Rape Child pornography Stalking
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Cyberstalking Facilitated by enormous amount of personal
information on the web Impersonal and anonymous nature of Internet
communications remove disincentives for stalking
Cyberstalkers effort is minimal Difficult to locate, identify and arrest offender Inflicts psycological but not physical damage Conflicts with “freedom of speech”
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Cyberstalking (cont.) When should criminal liability be imposed for creating
and disseminating artificial constructs and manipulating information that is freely available about individuals?
This is a "new" criminal exploits computer technology to achieve results that
would not have been achievable in years past.
A nation must maintain a balance between protecting the safety and security of individuals and guaranteeing the free dissemination of information
and opinion.
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Crimes Against Property Theft Forgery Fraud Malicious damage Hacking
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Theft Unlawfully taking property That belongs to another So as to deprive the owner of its use By
Carrying it away (larceny) Using force (robbery) Deception (fraud) Breaking & entering (burglary) Exploiting a position of trust (embezzlement)
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Theft (cont.) The law has had difficulty in reconciling the use
of new technology with theft offences e.g. “joy riding” in cars) Cheques Electronic funds
Cybertheft relies on the electronic transmission and manipulation of data-rather than acts and communications effected in the "real world“
Cybertheft is traditional theft accomplished by rather non-traditional means
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Theft (cont.) Real world theft is a zero sum offence - the sole
possession and use of property is transferred from the rightful owner to the thief.
Cybertheft may only involve copying information Both the owner and the thief now have the
information The owner has lost value due to loss of
exclusive use of the information
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Forgery Using a computer to forge:
paper documents Electronic documents
Same offence – new means No new penal laws required
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Hacking Analogous to traditional law of trespass Difficulties with
Consent Virtual worldsRequires specific penal laws
Hactivism Analogous to vandalism More damage caused Is it free speech?
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Denial of Service Cannot be prosecuted as:
Vandalism Theft
Requires new penal laws
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Crimes Against Administration of Justice Generating false evidence Altering court records Threatening judges, law enforcement officials
etc. False reports of crime Impersonating police officers etc. Mostly, computer technology is simply a tool that
is used to commit an existing offence
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Crimes Against Administration of Justice Two new types of offending
Cybervigilantism Raises similar issues to cyberstalking
Threats Conflict with “freedom of speech” Virtual activities may not be seen as a
direct threat Compilation of publicly available material
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Crimes Against the State Treason Espionage Sabotage Terrorism
One man’s terrorist is another man’s freedom fighter
Counterfeiting
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Procedural Laws Jurisdiction Place of offence Extradition Search and Seizure laws
What is a legal search in one country may not be in another
Often only cover tangible evidence
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International Agreements The Council of Europe's Draft Convention on
Cyber-Crime seeks "to improve the means to prevent and suppress computer- or computer - related crime by establishing a common minimum standard of relevant offences."
The convention proposed by the Center for International Security and Cooperation (CISAC) has similar provisions
MANAGEMENT & LEGAL IMPLICATIONS OF eCOMMERCE
International Agreements (cont.) The Council of Europe’s convention addresses
misuse of computer data and computer systems; computer-related forgery and fraud; child pornography; infringement of copyright provisions governing the imposition of aiding and
abetting and corporate liability.; and the availability of certain procedures used to
investigate cybercrime and apprehend cybercriminals.
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The Australian ResponseCybercrime Act 2001 Creates 3 new serious offences
Unauthorised access, modification or impairment with intent to commit a serious offence
Unauthorised modification of data Unauthorised impairment of electronic