Common Tort Law Actions in Cyberspace
Torts are wrongful acts between individuals. Lawyers and commentators have started to use the term cybertorts to describe torts arising from internet communications.52 (Terms are always trendier when cyber is added as a preface!) Courts are applying traditional tort law principles to areas where communications and personal interactions occur electronically. This section will briefly describe some of the ways that tort law concepts have been applied to online interactions.
Defamation
Defamation is an intentional tort. Defamation occurs when one person speaks or publishes a false statement of fact about another person that injures that person’s reputation. There are two types of defamation cases. They are:
- Libel—Written defamation
- Slander—Oral defamation
The distinction between libel and slander has diminished in recent years, with “defamation” being used generally to refer to both types of cases. Defamation cases in cyberspace involving written communications are considered libel cases. To prove defamation, a plaintiff must show all of the following:
- That the defendant made a false statement of fact
- That the defendant published the statement to third parties
- That the defendant knew or should have known that the statement was false
A defamatory statement must be more than mere opinion. For instance, in Hammer v. Amazon.com (2005), the plaintiff, a self-published author, sued Amazon.com for defamation. An online reviewer gave the plaintiff’s book a negative review, which Amazon published. The plaintiff wanted Amazon to remove the review, which it refused to do. The court ruled that the reviewer’s statements were opinion and could not support a defamation claim.53
NOTE
The term flaming refers to contentious debates between online posters, which often occur on online discussion boards. People might be able to use these types of statements to support a defamation case.
The defamatory statement must be published to third parties. The publication requirement is easily satisfied when information is posted on the internet. In fact, because many people have access to the internet and materials posted on it, it may be easier for a plaintiff to show publication in an internet defamation case. Information posted on the internet may reach an audience more quickly. It also could lead to greater damage to the plaintiff.
Finally, the plaintiff must show that the defendant knew, or should have known, that the statement was false. A plaintiff shows this by presenting evidence that the defendant did not check facts or the source of a statement.
Some types of statements are so scandalous that a court automatically presumes that defamation has occurred. These types of statements are called defamation per se. Per se is a Latin phrase that means “by itself.” Types of statements considered defamation per se include:
- Statements that a person has a loathsome disease
- Statements that a person has committed a crime
- Statements about sexual misconduct or chastity
- Statements about professional impropriety
If a defamation case involves these types of statements, the plaintiffs do not have to prove all the defamation elements. They just must prove their damages.
NOTE
Traditionally, loathsome diseases were diseases such as leprosy and venereal disease. They are diseases that have great social stigma.
Defamation is considered in context. A court must consider all the facts and circumstances around a case. In a traditional defamation case, the plaintiff can sue both the original maker of the defamatory statement and anyone who republishes the statement. These lines are blurred online. It makes it especially hard to determine where a defamatory statement first appears.
Understanding what constitutes a defamatory statement online can be hard—especially in cases involving social media. In 2019, a unanimous jury held that Elon Musk did not defame another individual through statements that Musk made through three tweets over Twitter.54
Internet Service Provider Liability for Torts
Congress enacted the Communications Decency Act in 1996. However, the U.S. Supreme Court declared many portions of this Act unconstitutional because they infringed on free speech rights. One part of the Act that is still in effect is Section 230.55
Section 230 protects interactive computer service providers from liability for the actions of content providers. The Act recognizes that “[t]he rapidly developing array of internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.”56 It also recognized that Americans rely on interactive media for educational and entertainment information. In enacting the policy, Congress sought “to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.”57
Under the law, an interactive computer service is any electronic information service or system. It specifically includes a service or system that provides access to the internet. Courts interpret this definition as broadly as possible. The act states that an interactive computer service provider may not be treated as the “publisher” or “speaker” of content posted by service users. This is a safe harbor for interactive computer service providers. It protects them from legal liability for the actions of service users.
Courts have applied this provision quite broadly to many companies who offer services over the internet such as social networking or bulletin board posting services. For instance, courts have found that Facebook, Craigslist, YouTube, and Twitter are interactive service providers who fall under the section’s protection.
ISPs rely on this law to insulate themselves from the actions of their customers. Section 230 specifically preempts state or local laws that would hold ISPs responsible for the acts of content providers.
The defendant can raise some defenses to a defamation allegation. Truth, for example, is an absolute defense to a defamation allegation. A court cannot hold a defendant responsible for defamatory statements if the statements were truthful. Another defense is that the defendant acted in good faith. Statements that a defendant makes in connection with judicial or legislative proceedings have immunity from a defamation action. These types of statements are called privileged statements.
One problem for online defamation cases is that it is sometimes difficult for a plaintiff to discover the identity of an online poster. This is particularly true if an anonymous poster makes defamatory statements in an online forum. Plaintiffs often have to go to court to get an ISP to turn over identifying information about an anonymous online poster.
A final item to remember is that online tort cases often involve jurisdictional issues as well. State courts can hold out-of-state defendants responsible for their actions only in limited circumstances. Most states have complicated tests, called “long-arm jurisdiction” tests, for when they can exercise jurisdiction over an out-of-state defendant. Lawyers and courts use this term because it describes situations where the “long arm of the law” can pull a defendant into a certain jurisdiction. This is the same type of problem that was discussed in the criminal law section of this chapter. These types of jurisdiction issues sometimes mean that a plaintiff must litigate a case in a state other than the state where she or he lives.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED) is known as the tort of outrage. This is because it is used to address conduct that is so offensive that a reasonable person would say “Outrageous!” To prove this tort, a plaintiff must show:
- That the defendant acted intentionally or recklessly
- That the defendant’s conduct was extreme and outrageous
- That the defendant’s conduct caused the plaintiff severe emotional distress
NOTE
Many states also recognize the tort of negligent infliction of emotional distress. This tort can be harder to prove because one of the elements is that the defendant owed the plaintiff a duty to act in a certain way. There is no duty requirement in IIED cases.
The Restatement (Second) of the Law of Torts notes that extreme and outrageous conduct is “beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.”58 Courts have recognized that people have the right to be free from this type of behavior. Even though courts recognize this cause of action, they have held that the defendant’s conduct truly must be extreme and outrageous given the circumstances. Mere bad or boorish behavior is not enough under this tort.
The landmark case recognizing this tort happened in California.59 In this case, the defendant won a contract for trash collection from a private entity. The contract was previously held by a member of the State Rubbish Collectors Association. The defendant was not a member of the association. The association intimidated the defendant into signing its membership agreement. Association members threatened to hurt the defendant and destroy his garbage truck.
The association then sued the defendant to collect dues as stated in the membership agreement. The defendant argued that the agreement was invalid because the association had threatened him and he signed the agreement under duress. He also argued that the plaintiff’s actions caused him to become severely ill and miss work.
In ruling on the case, the court said that a person has the right to live his life without “serious, intentional, and unprivileged invasions of emotional and mental tranquility.”60 The court found that the defendant stated a claim for IIED and could recover damages based on his IIED claim.
IIED cases can arise through email, comments made on social networking sites, and instant messaging. Because IIED cases involve interactions between a plaintiff and defendant, evidence proving the contents of the electronic communications can be very important. Similar to defamation cases, in most instances ISPs are not liable for the actions of content providers that cause an IIED.
FYI
Often IIED cases involve situations where a person is using a work email account or internet access to commit the tortious activity. There are times when employers might be liable for the bad acts of employees. Employers can be liable for their employees’ actions when those actions take place within the scope of the employee’s job. An employer also must have knowledge of the employee’s tortious acts. Courts have been reluctant to hold employers responsible for the cybertorts of employees unless the employer had knowledge of its employee’s actions and did not take steps to stop them.
IIED claims also can involve claims of harassment. Some states recognize harassment as a tort, whereas most consider it criminal behavior. Some states also have included cyberstalking or online harassment in their criminal harassment laws. For example, Oklahoma and New York have anti-stalking laws that include online harassment as a prohibited activity.61
Harassment is similar to IIED in that the harasser intends to cause the plaintiff emotional distress. Harassment can include continuing to communicate with a person when she or he has asked that the harasser no longer talk to him or her. It also can include threats made against a person or that person’s loved ones. Harassment also can include offensive sexual remarks and remarks based on characteristics such as race, national origin, religion, and gender.
Similar to IIED, harassment can very easily take place in the online environment. It can occur via email, postings on social networking web pages, and postings on other web pages.
Trespass Torts
Common law recognizes trespass torts. In common law, there are two types of trespass cases: trespass on land and trespass to chattels. Chattels mean personal property. Trespass to chattels is intentionally interfering with a person’s use or possession of personal property. The defendant’s use of the plaintiff’s personal property must cause an injury or damage. Often this happens when the defendant harms the personal property in some way.
Courts have extended trespass to chattels cases to online situations, such as spam email. The first court case holding spammers responsible for trespass to chattels was in 1997.62 In that case, an ISP sued a defendant for bypassing the ISP’s spam-blocking controls to send spam emails to the ISP’s customers. The defendant had changed the header information on its spam emails so that the emails could could get past the ISP’s spam filters. The ISP argued that the spam emails imposed a burden on its system. It also argued that the defendant’s spam messages were an intrusion to the ISP’s system because they bypassed filtering controls. The U.S. District Court for the Southern District of Ohio found that the defendant’s spamming activities did indeed constitute a trespass of that system.63
NOTE
Remember, in tort cases, a plaintiff must show that he or she incurred damages from the defendant’s bad conduct.
In a trespass to chattels case, the plaintiff must be able to prove that he or she was injured or harmed. This is the most difficult element to show in online cases. In 2003, the Intel Corporation sued an ex-employee for sending spam emails to over 30,000 Intel employees on multiple occasions. The California Supreme Court rejected Intel’s trespass claim because it was unable to prove any damages. Intel was not able to show that the thousands of emails slowed its servers or caused some sort of adverse effect on its computer systems.64
Privacy Violations
The four privacy torts are:
- Intrusion into seclusion
- Portrayal in a false light
- Appropriation of likeness or identity
- Public disclosure of private facts
Privacy torts were discussed earlier in this book. Courts are beginning to recognize that people have a right to privacy in their electronic equipment and electronic communications. The intrusion into seclusion privacy tort is used most often in this context. For example, a plaintiff may be able to sue a defendant for accessing the plaintiff’s private electronic blog without permission. However, the rise of the internet as a communications and entertainment medium may mean that other privacy torts, such as portrayal in a false light, may grow as well.
A question that is yet to be resolved is whether people have a true right of privacy in their use of the internet, independent of any tortious or criminal activity. A person’s privacy on the internet is somewhat limited by the logging mechanisms that ISPs and web pages employ to make sure that systems are operating correctly. Programs used by service providers to track activity for advertising purposes also are threats to privacy.
Tort cases are firmly rooted in state laws. There may be other tort actions that a plaintiff can use to seek redress for harmful activities in cyberspace. If a plaintiff is harmed by actions in cyberspace and has damages and injuries that he or she can prove, the plaintiff will need to review state laws and court cases for appropriate causes of action.