Transcript Agents of Harm or Agents of Grace

Agents of Harm or Agents of Grace
The Legal and Ethical Aspects of
Identifying Harm and Assigning
Responsibility in a Networked World
By Thomas A. Lipinski, Elizabeth A.
Buchanan, and Johannes J. Britz
Introduction and Background

Defamation-an action that requires the
plaintiff that has been exposed to public
ridicule that has injured the professional
standing in the community.
Four Elements to Defamation




A false and defamatory statement
That is published to one or more third
parties without privilege.
By a publisher who is at least negligent
in communicating the information.
The results in presumed or actual
damage.
Defamation Online



Developing laws are inconsistent.
One approach is to apply the distributor
and publisher distinction.
Vicarious Liability-if the service provider
has control of the operator then it
shares in legal responsibility for his/her
actions.
Section 230



Enacted as part of the Communications
Decency Act.
Information intermediaries are immune from
any liability as publisher when they take
actions to limit the content of information on
their system.
The trend of developing laws based on
section 230 is to indemnify online
intermediaries from liability.
Legal Implications




Who remains liable then for the defamation
online?
Traditional intermediaries are held to the
higher standard.
The only party to seek remedy from is the
defamer.
Pro-Plaintiff common wealth standard vs.
online speaker-only liability underscores the
need for a uniform internet standard.
Actions of another Country.



England is known as the plaintiff's
jurisdiction.
The statement is considered false until
proven otherwise.
The defendant must prove the
truthfulness of the statement.
Cont.




Three elements must pass for the defendant
to be not guilty.
He was not the author, editor ,or the
publisher of the statement.
Took reasonable care in relation to the
publication.
He didn’t know and had no reason to believe,
that what he did cause or contribute to the
defamation statement.
Anonymous and Defamatory
speech on the Internet.




When should a anonymous poster’s identity
be revealed?
Three tests developed by the court to reveal
the identity.
‘Legal Merit’-shows the court has jurisdiction.
‘Good faith’



“External” claim is valid.
“Internal”-defendant must act in good faith.
‘Necessity’-there is some urgent need for the
information or there is no other source.
Section 512


The Digital Millenium Copyright Act
(DMCA) contains a section that provides
some legal protection to online
intermediaries.
Contains a subpoena provision which
allows intermediaries to give up user
information in cases where copyright
infringement has occurred.
Morality vs. Legality



Moral values is based on Kant, Habermas,
Rawls, and Singer.
Authors argue in favor of human rights as a
framework to regulate the internet and ISPs.
Two approaches.



Communitarian
Liberalist
A balance approach is proposed.
Unsatisfactory Law



Current laws treat ISPs as publishers,
distributors, or common carriers.
This is a line of thinking that doesn’t
take into account the nature of ISPs.
Either strict responsibility or strict nonresponsibility must be determined,
there has been no exploration of shared
responsibility.




On one hand, holding ISPs liable across the
board would have a worldwide affect on free
speech and lead to unfair treatment of ISPs
and their members.
Conversely, to find them specifically
blameless could leave individuals affected by
defamation without moral or legal protection
in cyberspace.
An ISP is not an inanimate object.
It is a living, dynamic entity that can assume
responsibility for its acts.
Nature of ISPs


Cannot be categorized specifically as
publishers, distributors, and or common
carriers.
Can act as one or all of these
depending on the specific context.
Four ways defamation can
occur via an ISP




E-mail sent to single users (and/or
forwarded to others)
Comments posted on listservs
Comments posted on Usenet boards
Defamatory comments on websites.
What can ISPs be held liable
for?

This depends on variables such as



The level of the ISPs knowledge about the
messages
What role (carrier, publisher, etc) it
assumed
To what extent it assumed this role
Responsibility


Responsibility relates to accountability, blame,
and punishment.
3 levels can be assigned to ISPs:



Functional – the ISP is responsible to see that
information is communicated effectively.
Legal - (based on minimum moral consensus)
Moral – based on a shared set of core values to
which a society adheres.


The authors support applying moral
responsibility.
There are two types of reasoning for
moral responsibility:


Communitarian approach – emphasizes the
collective responsibility to society as a
whole.
Libertarian – rights of the individual more
important that community rights.
Conclusion

Two proposals for legal handling:


Restore distributor liability before section
230 (a know or reason to know standard)
before it became a complete immunity
standard.
Impose a ‘should know’ standard that
encourages investigation.