Offensive behaviours - distortions

Careful WithThat Fake Social Networking Profile; If You 'Personate' Someone, You Can Go To Jail(TechDirt, 02 June 2010) - the article is critical of the offence: it should not be criminal to impersonate somebody on Facebook in California. I tend to disagree. Using the name of somebody can be criminal whatever the motives. French law considers that the simple use of a name is an offence, although a minor one. But the conjunction of using another's name with fraud notably is in most jurisdictions a crime; why not for a fake webpage if this webpage has not been intended as a work of fiction but as the description of someone's life and thoughts? Of course, torts may be a better tool to deal with such issues, but criminal law cannot be excluded per se.

On the other hand, criminal law cannot be misused just because the behaviour is wrong and does not fit other crimes than hacking for example. Mom Who Used Son's Facebook Account Found Guilty Of Online Harassment (TechDirt, 28 May 2010). what she did was hardly constitutive of harassment: she accessed his account, changed the password and used the Facebook account...

same for banning sentences or pre-trial measures, a "Guy Who Encouraged People To Commit Suicide Online Banned From The Internet" (TechDirt, 27 may 2010), but this is far too broad a measure

offensive and harmful content: reaction or education?

We may well be in a transition period where people are not fully understanding that what on the net is not necessarily reliable, accurate and representative of the truth. Therefore it may be more an educational issue than a legal issue and to modify the law or use it and distort it appears quite silly.

Guy Charged With Harassment For Sending Email Complaint To Senator Jim Bunning (TechDirt, 04 June 2010)

Twins In Legal Fight After Making Disparaging Comments About Professor On Facebook (TechDirt, 15 June 2010)

Louisiana Wants To Put You In Jail If You Embarrass Anyone Under 17 Years Old Online (TechDirt, 21 may 2010)

Certainly the law can't be used to bypass fundamental rights to be published.

Andrew Cuomo Grandstanding Again: Threatens To Sue Social Networking Site Over Actions Of Its Users (TechDirt, 10 June 2010)

New Libel Law Proposed In The UK; Gives ISPs Two Weeks To Respond (TechDirt, 07 June 2010)

Interpretation of traditional offences

Three scenari demonstrating how the internet affects the interpretation of criminal law

Sexting: no child porn for the US courts
"Court Rejects PA DAs Attempt To Charge Teens For Sexting Themselves", TechDirt, 18 March 2010 - The court is right in legal terms. The child porn offence was meant to protect children against others (and adults) rather than against themselves (and their peers). But morally and practically, it is not satisfying. The DA could have used the money spent in prosecuting differently? I think this is one of the offences most deeply affected by our ways of consuming the new technologies

"California Court Says Online Bullying Is Not Protected Free Speech" TechDirt, 19 March 2010. Decision justified as long as the "bullying" fits the definition of harassment; calling somebody a jerk without a pattern of abuse is no harassment.


"ACS:Law Now Using Dubious Legal Theories To Threaten Slyck.com", TechDirt, 22 March 2010. It is not so much the headline that interests me than the details of the article: NY has passed a legislation to avoid forum shopping in liber law. In effect, libel decisions from foreign jurisdiction are unenforceable on its territory. This destroys the idea that one can be liable from anything published on the web by any jurisdiction; indeed, a condemnation can only be enforced if the country of residence accepts the enforcement! Remains the issue of the trial by abstentia and the difficulties the person may have to travel to the country who took the original decision as traditionally, stepping on one's territory is to accept its jurisdiction. So the ban is enforced differently!

But for no change in the law, just change in illegal methods to act: "Disgruntled Ex-Auto Dealer Employee Hacks Computer System To Disable Over 100 Cars" TechDirt, 18 March 2010

Sued Over Twitter Message? Can You Defame Someone In 140 Characters Or Less? | Techdirt

Sued Over Twitter Message? Can You Defame Someone In 140 Characters Or Less? | Techdirt

apart from the issue of the audience, there is the issue of the message contents: 140 characters means strong language to be used in order to accept defamation. Here, there seems to be confusion between criticism and defamation...

Twitter; ID fraud

The story runs as follow. Account was opened in Twitter under La Russa; it was a fake account. Some claimed that under threat of lawsuit, Twitter (the company) closed the account and donated money to charity. Twitter denied the story.
Two things spring to mind. Is the fake account doing any harm, for example by impersonating a real life person so well one could not easily guess what was true and false? if so, civil law at least applies and Twitter can delete the account. However, there should be court proceedings rather than threats and bullying.
"La Russa & The AP Claims Twitter Settled Lawsuit... Twitter Sets The Record Straight
"French Law has actually taking the step of making it an offence, with a maximum of one year emprisonment, following a few MPs whose name have been 'abused'. "Loppsi : 1 an de prison pour la fraude à l'identité sur Internet" (Numerama, 27 May 2009)

Then, this affair/case seems a matter of education of people and companies on the internet.

"Lifelock Found To Be Illegally Placing Fraud Alerts On Credit Profiles" (TechDirt)

"So-Called 'Friendly Fraud' On The Rise" (TechDirt 27 May 2009)

Defamation/insult online and disciplinary action

The basis for a disciplinary action is that the context is that of discipline. The offence has been committed within specific area/location (a school, an office, a prison) or in relation to a group often regulated specifically (e.g.: doctors) . The sanction aims at maintaining order within that location or within that group. I don't see how comments online outside school hours and outside the school itself can fit than notion of discipline. THen if it is not discipline, only civil law applies and in very rare cases, criminal law.

"Judges Divided On Right Of Schools To Punish Students For Mocking Principals Online" (TechDirt, 9 June 2009)

Defamation: civil or criminal matter?

Many legislations have a civil suit and a criminal charge for defamation. The article about Colorado US is interesting in comparison with the proposal in France to stop allowing defamation charges that do not bear for example any hatred.
"Does It Make Sense To Have Libel Be A Criminal Offense?" (TechDirt, 5 December 2008)

Defamation in cyberspace - a reminder

Hardly surprising, but worth a reminder. Diffamation/libel still applies on cyberspace and more importantly, in some countries like France it is a criminal offence and does not engage civil liability. "Reminder: Defamation Still Applies To Bloggers" (29 September 2008)

Defamation, MySpace and fake profiles

Case rejected against those children who created a fake profile of their headmaster; lucky because in some countries like France defamation is a criminal matter not usually a civil law issue like in the US and UK (well criminal law does get involved but rarely).
Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber (Eric Goldman - 22 august 2008)
Draker v. Schreiber, 2008 WL 3457023

But it does not mean disciplinary action cannot be taken. See "Judge Says School Can Suspend Student For Fake MySpace Page Of Principal" (19 September 2008)

A change of standard in the law? Sorry have not read yet the case, so can't comment much "UK High Court Recognizes That Defamation Standard Should Be Lowered For Online Forums" (11 August 2008) Judgment is available on the BBC website in PDF format

Jurisdiction, ISPs' liability and libel

According to the story, a British politician shut his blog for Google (US) refused to remove a defamatory post put on his blog and on others'.

What strikes me first is the line taken by Google. De facie, perfectly adequate, their response only highlights the double standard applied by the company and others to be fair. For if the request came from China and the like, previous experiences show that Google was quick in removing the post and even giving the dissident's details. Suddently, lack of jurisdiction was not an issue anymore. The difference only confirms that when big money is at stake, there is suddenly no legal obstacle on the way to satisfy greedy people.

Secondly, as pointed out by the author of the post, there were probably other ways of tackling the issue of libel if it was serious.
Thirdly, it highlights the problem of offensive contents: how to reconcile the global aspect of the net with regional differences?
"The Other Side Of The Jurisdiction Issue: UK Politician Upset That US-Based Blogs Follow US Laws" (7 March 2008) http://www.techdirt.com/articles/20080305/193747455.shtml

Anonymity and fighting harassment and libel

In the US, Kentucky lawmaker filed a bill to make anonymous posting illegal. The website operator who would fail to enforce the law (i.e. let somebody posting without identifying him/herself) would pay a fine.
there are two problems here: first, free speech; anonymity is a key feature of free speech. See previously anonymous mail which can be bad or good. Secondly, criminal policy: is it the best way to fight bullying to require loss of anonymity? (10 March 2008) http://www.techdirt.com/articles/20080310/110506493.shtml

Compared with the following, it is interesting to see that readers of websites sued the website owner/operator, along similar lines as proposed by the bill above. But they did not succeed (action dropped) and are even now a target of a lawsuit for libel, for the website owner losts his job because of the damage the first legal action brought. Which raises incidentally the question of the presumption of innocence! (10 March 2008) "When Law Students Get Angry... Lawsuits Get Filed" http://www.techdirt.com/articles/20080310/014651487.shtml

And where the above idea becomes interesting is when are at stake websites ranking or rating individuals for their performance in their job. Libel is obviously a danger; but this is only part of the iceberg: harassment and personal vengeance could be coupled with anonymity and give extremely hurtful results for the people targeted. Contrary to the author of the following post, I do not think accountability can be achieved via websites of this sort. There is no control on facts, no procedure to promote fairness; whatever an individual has done, s/he cannot be deprived of fairness of procedure. Otherwise, we become like those monsters we are supposedly fighting. (10 March 2008) "Police Accountability Is A Good Thing" http://www.techdirt.com/articles/20080305/075621447.shtml
The French courts clearly took the opposite view from the author of the above article. They ordered a website ranking teachers nominally to stop publishing the teachers' names, thus taking away the whole interest of the website. The co-founder of the website Stephane Cola is obviously unhappy and considers there is a breach of freedom of speech, making a parallel with ranking institutions, but I think the issues are muddled here. It's OK to rank institutions who have no career as such and have a duty of accountability to all; but to rank an individual whose career and privacy is directly at stake with no chance to put things right reaches an other level.
Sorry the article is in French "La justice dit non aux noms des professeurs sur Note2be" (3 March 2008) http://www.01net.com/editorial/372605/la-justice-dit-non-aux-noms-des-professeurs-sur-note2be/