Lecture

The Internet

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IT Service Management

Learning Aims

To explain the law regarding the use of internet; To investigate the basics of the law of

defamation; To discuss how to make an ethical decision.

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What do I need to know about Internet Law?

Don’t need to be a legal expert to get by.

Two important notes- common sense is your friend; and

The internet is not ‘another world’, exempt from the laws that govern your everyday life.

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Presumption for No Repercussion in the Real World

In its early days, the internet was seen by many as something different - a world apart.

Some idealists even believed it should be. They envisaged a place of ultimate freedom, where individuals could say whatever they wanted with no repercussion in the ’real world’.

The presumption ended over a decade ago, with the landmark case of Godfrey vs Demon (2001) concerning online defamation.

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Godfrey vs Demon (2001)

Facts:

Laurence Godfrey, a lecturer, learned that someone had posted a message to the Usenet discussion group soc.culture.thai. That message, sent by an unknown source, had been forged to appear to have been sent by Dr. Godfrey.

On January 17, 1997, Godfrey contacted Demon Internet, one of the major Internet Service Providers in Great Britain to inform them of the forged message and ask that it be deleted from Demon Internet's Usenet news server.

Demon Internet declined to remove the message, which remained on its servers for ten additional days, at which time it was automatically deleted along with all other old messages. Godfrey sued for libel, citing Demon's failure to remove the forged message at the time of his initial complaint.

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Godfrey vs Demon (2001)

Decision:

The High Court held for the purposes of the Defamation Act 1996 that an ISP which transmits a posting from its news server to subscribers who want to use it, is not the publisher of the posting, although at common law it would be considered to be.

However, the court held that because the ISP had not removed the offending material as soon as it was notified of its existence, it had not acted reasonably and the defence under the Defamation Act 1996 was not available.

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The Law of Defamation

Aims to protect a person’s reputation. Under Article 10(2) of the European Convention of

Human Rights, the protection of the reputation of others is a legitimate ground for restricting the right to freedom of expression.

Libel and slander are legal claims that protect an individual’s reputation against defamation.

An individual is defamed when a person publishes to a third party words or matter containing an untrue imputation against his or her reputation.

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Defamation Act 1996

Section 1:

In defamation proceedings a person has a defence if he shows that—

(a)he was not the author, editor or publisher of the statement complained of,

(b)he took reasonable care in relation to its publication, and

(c)he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

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Other Defences to a Defamation Claim

Justification (Truth) Fair Comment - If a defendant can prove that the

defamatory statement is an expression of opinion on a matter of public interest and not a statement of fact, he or she can rely on the defence of fair comment.

Fair does not mean reasonable, but signifies the absence of malice.

Qualified privilege – applies to proceedings in Parliament and courts.

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Liability of Internet Service Providers (ISP)

3 potential liability for: Copyright

Privacy & Fraud

Defamation

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Liability of ISP: Copyright

ISPs can be held responsible for copyright infringement committed using their servers or other equipment.

Although courts often side with the ISP, they can technically be held liable for any unauthorized materials distributed through or stored on their servers.

Generally, the less involved the ISP is with the servers and files, the less liable they are.

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Liability of ISP: Privacy & Fraud

ISPs are generally liable for protecting their customers.

An ISP can be held accountable for upholding service contracts and ensuring customers receive the agreed-upon services.

Also liable for protecting private customer information.

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Liability of ISP: Defamation

ISPs can be held liable for any defamatory statements distributed through their servers if the courts determine the ISP is a content provider and responsible for the creation of information.

ISPs are not liable for slander if the court finds they are a content distributor or interactive computer service.

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Electronic Commerce (EC Directive) Regulations 2002

The Regulations limit the liability of service providers who unwittingly transmit or store unlawful content provided by others in certain circumstances.

There are three categories of service providers whose liability is thus limited by the Regulations; those who transmit information (i.e. 'mere conduits'), those who engage in "caching" information, and those engaged in "hosting" information .

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Mere-Conduit Where the service of a business consists of either a

transmission in a communication network of information which has been provided by a recipient of the service (e.g. an ISP transmitting a customer's email) or where the service consists of the provision to access to a particular communication network then the service provider will not be liable: if it did not initiate the transmission; did not select the receiver of the transmission;

and did not select or modify the information in the

transmission.15

Caching

Protection to businesses which store copies of sites in the provision of their access services.

The service provider will not be liable where the caching is "automatic, intermediate and temporary for the sole purpose of providing a more efficient service".

Further, the service provider must not modify the information and must comply with all access conditions imposed with regard to the site.

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Hosting

When a web-host stores information provided by a user, the host is not liable for any criminal sanction as a result of that storage provided: The service provider "does not have actual

knowledge of unlawful activity or information"; Upon obtaining such knowledge, it acts

expeditiously to remove or to disable access to the information; and

The recipient of the service was not acting under the authority or the control of the service provider.

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Ethical decision making

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What is right and What is wrong

Ethics is not just about what is right and what is wrong. Scientists and engineers are generally not very good at

explaining their work or justifying their actions in non-technical terms.

Absorbed in technicalities; things become complicated that they cannot explain them in simple terms.

Thus, it is crucial that technologists can provide clear and understandable justifications for their motives, decisions and actions.

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Moral Systems and Principles

A way of convincing people that you have their best interest in mind is by citing moral systems (relates to one’s goals, beliefs, and life path).

Citing moral systems and principles can help to provide assurance that one’s motives, etc were of good intent.

Remember that even though these moral systems and principles have sound foundations not everybody will be re-assured by such references.

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Stakeholder Analysis

Stakeholder analysis can help you to arrive at sound decisions and provide justifications.

Stakeholder – any person, group or organisation that could be affected by the decision.

Is it easy to identify your stakeholders? Direct and indirect stakeholders.

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Six useful tests

Useful tests you can apply if you are presented with some kind of dilemma: The golden Rule The Legality test The smell test The parent test The media test The market test

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The Golden Rule

How would you like it if what you are proposing to do was done to you?

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The Legality Test

Is what you are proposing to do legal?

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The Smell Test

Do you have that feeling in your stomach that it’s right or that it’s wrong?

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The Parent Test

Would you tell your parents that you are planning to do this?

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The Media Test

How would you defend this on television?

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The Market Test

Is the solution that you have come up with so good that you should think about selling it?

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Looking forward to:Practising Past Exam Papers

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