CYBER LIABILITY ARTICLE
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CYBER LIABILITY : THINK TWICE BEFORE HITTING SEND
AUTHOR : Erik Stone EMAIL : estone @ jshfirm . com BIO : jshfirm . com / ErikJStone
We have all seen it . A well-known celebrity sends out a series of nasty tweets or foolishly posts private pictures of someone online to embarrass or harass them . Inevitably , the celebrity will delete it , apologize , and most likely claim that their account was hacked . But often times what follows is a lawsuit . It should come as no surprise that the internet has opened up a whole new world of potential liability – both for individuals and businesses . This article will take a closer look at some of the most common claims arising from the internet and provide best practices for avoiding and defending such claims .
Defamation & Business Disparagement
Defamation is one of the most prevalent claims in cyber law . In recent years , these have come in the form of disgruntled customers or malicious competitors trying to gain an improper competitive advantage by posting defamatory material on message boards or websites like Yelp . In some cases , companies create fake Facebook accounts in a campaign to bring down a legitimate competitor .
Ultimately , the only way to avoid claims like these is to engage in fair competition . To ensure that employees do not expose their employers to liability , companies should implement policies on how their employees engage in the online marketplace . Most successful companies have a marketing department that handles the company ’ s entire online presence so that mistakes are minimized . But , of course , mistakes do happen .
Once a lawsuit is initiated , the focus will be on potential defenses . To prove a claim for defamation in most jurisdictions , a Plaintiff must prove each of the following : ( 1 ) the Defendant made a defamatory statement about the Plaintiff ; ( 2 ) the statement was false ; ( 3 ) the statement was published to a third person ; ( 4 ) the statement caused damage to Plaintiff ; and ( 5 ) the Defendant knew the statement was false or made it with reckless disregard as to whether it was true .
A statement is defamatory if it tends to bring the Plaintiff into disrepute , contempt or ridicule , or if it impeaches the Plaintiff ’ s honesty , integrity , virtue , or reputation . Statements like
“ Company X is poorly run ” or “ I was unhappy with Company X ” are not defamatory . However , courts have found the following terms rise to the level of defamatory – e . g ., “ scam ”; “ fraud ”; and “ crooks .”
Once a statement is proven to be defamatory , the case will turn to damages . In most cases , a defamatory statement has little to no impact – meaning no actual damages . There have been several cases in which Plaintiffs sustain absolutely no harm ( i . e ., no loss in sales or revenue ) other than their reputation . In some cases , however , the Plaintiff has such a poor reputation to begin with that the allegedly defamatory statement has seemingly no effect .
Nevertheless , “ presumed damages ” are available for certain types of defamatory statements . Those include statements that impute criminal misconduct , sexual misconduct or diseases , and unfitness for a business , trade , or profession . Ultimately , damages will be determined by a finder of fact based on what fairly and reasonably compensates the Plaintiff .
Copyright Infringement
Another claim arising from the use of the internet is copyright infringement . A copyright is a type of intellectual property applicable to “ works of art ” – e . g ., photographs , writings , paintings , music , jewelry , etc . The right is owned by the creator or author of the work , but it can be transferred just like any other piece of property . The owner of a copyright has exclusive right to control publication , reproduction , and distribution of the work .
Although the notion of copyright came about with the proliferation of the printing press in the 1700s , it has had a significant impact on the modern world . Today , copyright law protects nearly all of the content found on the internet . That includes all of the photos posted on Facebook and Instagram , as well as all of the 140-character tweets found on Twitter .
In cyber law , it ’ s common to find allegations of copyright infringement stemming from the use of “ stock ” photographs used to advertise products and services . Often times such use is