With the explosion of Internet message boards and chat rooms has come an avalanche of what many regard as defamatory statements, as well as postings, that wrongfully disseminate false, confidential, as well as misleading information about the financial securities business and other businesses, as well as people.
As if this global meltdown were not sufficient, I have been informed that there are dirty tricks departments of various corporate entities and financial institutions that have been engaged in malicious postings. Not only are these statements potentially damaging to a corporation’s or a person’s reputation, but especially, in the case of public companies, they may cause real financial damage as well.
Since the Internet operates the way it does, these messages can originate from just about anywhere. The people that do this normally use aliases that make it difficult to identify who they are.
And the worst part is that when the companies affected by such information and messages manage to track them down, these defamatory statements can hang around for a good long time.
What recourse, then, do the wronged entities affected by such derogatory statements have? How do they deal with them? More importantly, how do they track down the malicious creators of these messages and stop them?
How will the ISPs be able to protect themselves and the privacy rights of their subscribers from an avalanche of malicious and bad-faith lawsuits, and subpoenas by plaintiffs seeking to chill legitimate criticism that should be protected as free speech? How will the message boards wear a shield of protection from having their ISPs give away their anonymity? Could this possibly expose them to possible and substantial losses and even sad repercussions in their respective careers?
And finally, how will the courts be able to find out and discover what under some circumstances falls under the fundamental right of free speech and the right to speak anonymously — while still holding these anonymous individuals justly and certainly appropriately liable for the malicious and wrongful use of free speech?
We must remember that the evolving nature of Internet law and the jurisprudence on Internet cases, also evolving under our World Wide Web, makes predictions difficult for me. There must be a studious and constant effort to take a look at the shifting legal landscape, which has been changing significantly.
A mix of technology, the provisions of the contract and litigation — all happening against a backdrop of evolving court decisions — is the answer to this.
Under the technology dimension, message boards or blogs, as they are colloquially termed, are usually hosted through the aid of ISPs or other popular Internet companies including Yahoo, America Online and Yehey, though a lot of smaller websites offer message boards, too.
Subscribers usually have their own self-styled e-mail addresses or user names and, like all Internet users, are assigned an IP (Internet Protocol) address as they connect to the Internet, which is really how computers identify themselves to other computers on the Internet.
A lot of people don’t have a fixed IP address that follows them wherever they go but instead, are randomly given a new address every time they connect to their ISP. So, what really happens is that computers that are identified on the Internet by a certain IP address are used to send messages using message board names to those located at a different IP address.
The unfortunate thing about all this is that IP addresses are assigned dynamically and last only the length of the session and most ISPs don’t keep records of them for long. And because IP addresses are randomly assigned, a malicious poster who logs onto the Internet several times will have done so through several different IP addresses even though he used the same ISP.
And this is where the lawyers come in. Their work or challenge is to follow the trail backward from the message board, traveling to the IP address from which the message was sent, to the IP whose server was used to send it to the actual sender. How will the lawyers do it? A simple answer — litigation.
I received an e-mail from Prof. Harry L. Nesbitt of New York, who, after lamenting this global crisis right now and indicating that I had rightly labeled the crisis “a catastrophe like no other,” gave me some good insights on how this really worked because I had told him my next article would be on this — not a catastrophe, just a confusing situation.
Prof. Nesbitt, who lives a few blocks away from Wall Street, said that as the first salvo, even before a formal complaint is filed, lawyers for the plaintiff should send what is known as a “cease and desist” letter to the message board host to “stop the bleeding” by removing the derogatory post from its server and that the ISP or host retains whatever evidence it has on the message’s origin to avoid destruction of evidence.
Obviously, before filing any lawsuit, legal practitioners need to know whom they are suing. In our e-mail exchanges, I volunteered the opinion that since lawyers could not see the message board host and didn’t know the real identity of the poster, many of them would have to sue one or more “John Does,” which essentially, to my knowledge, is a placeholder defendant meant to represent the person being sued until such time as the defendant’s real identity is discovered.
Speed has always been, in matters like these, the overriding concern, especially if the message board host refuses either to turn over any information or even isolate it, in which case a rational lawyer’s only immediately meaningful way to identify the mystery poster would be to obtain a speedy subpoena from a court ordering the host to reveal the requested information.
The legal profession, as far as Internet law is concerned, can indeed be a cloak-and-dagger situation that leads to a great deal of technological detective work, and, of course, swift but careful court action.
The responsibility of ISPs for the defamatory content of the Internet remains unsettled. Dr. Norbert Uhlmann, who was an IBM attorney in the mid-’90s, cites a recent criminal lawsuit in Germany against the CEO of a German service provider, who was made accountable under criminal law for the criminal defamatory content of the material on the Internet that could be accessed through his service.
This became a rather contentious decision and a number of German legal experts objected to the assignment of such heavy responsibility to the CEO, simply because his local service had, within the meaning of the then-new German Teleservices Act, merely provided access to the data contents. Nevertheless, it is commonly understood in Germany, which is noted in the act, that local service providers should check Internet content and deny access to defamatory material.
US law does not limit Internet speech to the same extent as other countries. Laws similar to the First Amendment of the US Constitution do not restrict the regulatory and punitive activities of most Asian and European governments. Thus, they can enact legislation that exposes an ISP to liability that would be found unconstitutional in the US.
In 1996, police in the UK pressured several major ISPs to eliminate content that was considered defamatory and pornographic. In the same year, in an unrelated action, a German court ordered German ISPs to block access to a Dutch provider because it hosted in its message board neo-Nazi propaganda, which is illegal in Germany.
Throughout the world, countries have endeavored to deal with the issue of defamatory material and group libel in different fashions. Although Germany was one of the first countries that zealously extended existing criminal statutes to the Internet and sent in law enforcement officials to pursue those accused of providing access to illicit defamatory content, most countries have simply extended the liability of the ISP.
The Association of Southeast Asian Nations (ASEAN), which includes the Philippines, has also acted vigorously to police the Internet and block access to those sites that are defamatory and or that even just run counter to “Asian values.”
In summation, therefore, since ISPs are subject to worldwide legal scrutiny, they will not be able to insulate themselves from liability. And remember this: ISPs will not be protected from a foreign claim simply because they did not create or assist in the creation of prohibited and defamatory message boards. The mere fact of providing access to or connections to or from a facility, system or network that contains unlawful defamatory material, certainly has the strong potential for resulting in great legal liability.
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