Saturday, 23 February 2008

Internet Offenses: Illegal Dissemination of Content

The Internet has offered a place that has allowed for the rebirth of many old crimes and torts. Obscene and ethically abusive acts (including child pornography) have developed to be both easier and may be more widespread in effect as a consequence of the Internet. This has resulted from the ubiquitous nature of both e-mail and the World Wide Web in modern society. Countless conventional crimes including intimidation and harassment, blackmail, fraud and criminal defamation have remained for all purposes, essentially the same. The simplicity and relative anonymity of the Internet have acted to increase their prevalence. Trafficking in contraband and counterfeit products, unlicensed and illegal gambling by use of the Internet and defamatory material sent to cause damage to another individual’s reputation are just the start of the many issues that the Internet has offered increased opportunities.

The Internet Intermediary has to ensure that they are able to meet a minimum level of practice and governance if they do not wish to become liable for these actions. At the least, inaction could result in action based on negligence.

In the US case of Williams v America Online Inc[1], some of the difficulties that that may occur where demonstrated. In this case, Mr Williams started proceedings in Massachusetts stemming from a class action over the installation of AOL software. AOL asserted that the proceedings must commence in Virginia as the terms state Virginia was the exclusive jurisdiction or any claim. Mr Williams however argued that alterations to his computer came about before he agreed to the conditions. Mr Williams described the complicated process by which he had to "agree" to the conditions after the configuration of his computer had already occurred.
Further, Mr Williams demonstrated he was able to click, "I agree" without seeing the terms of service. This meant that the actual language of AOL's terms of service failed to display on the computer screen unless the customer specifically requested it, overriding the default settings. The court rejected AOL's assertions[2]. Although this was a contract case, the difficulties posed through the media add additional burdens to an already burdened system.

In Europe, the potential for a wide divide has opened due to the perceived disparity between personal privacy and intellectual property protection. The recent Spanish case C-275/06 (Productores de Música de España Promusicae vs. Telefónica de España SAU) highlights this disparity[3]. Advocate General Kokott came to the determination that EU law does not oblige Internet intermediaries to hand over private information in civil litigation. The Spanish music Association Promusicae had requested that the ISP Telefonica provide the identities and addresses of its clients who had connected and allegedly disseminated multimedia files that were protected through copyright provisions using the Kazaa P2P network. Telefonica objected to this request stating that it would only do so in the course of a criminal investigation or in matters of public security and national defence. A Spanish Court of Madrid asked the ECJ for the interpretation of the EU law on this matter.

Such a determination could be seen as contrary to the French “three strikes” model[4] that is being considered in the recent “Creative Britain; new talents for the new economy”[5] framework. Although this proposed legislation could do much to curtail intellectual property losses by requiring ISPs to monitor the illicit activities of their subscribers, it is yet to be seen how the court will interpret this. Taken in view of the determination handed down from C-275/06[6], it is likely that any legislative requirements could be construed as being problematic and have a high potential to be struck down by the European Court of Justice and hence rendering them an effective. The best outcome then would be a voluntary agreement that was implemented and affected through the ISPs themselves. The difficulty in reaching such an agreement however is likely to render this doubtful.
[1] MARK WILLIAMS and another(1) vs. AMERICA ONLINE, INC. 2001 WL 135825 (Mass. Super., February 8, 2001)
[2] "the fact the plaintiff may have agreed to an earlier terms of service for the fact that every AOL member enters into a form of terms of service agreement does not persuade me that plaintiff's ... have notice of the forum selection cause in the new terms of service before reconfiguration of their computers."
[3] Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU (Opinion of Advocate General Kokott), July 18, 2007.
[4] The French President announced a plan on the 23rd Nov 2007 to curb Intellectual property theft and other Internet related crimes. He stated that: "Today an accord is signed and I see a decisive moment for the civilised internet. Everywhere, in the US, UK and others, industry and government have tried... to find a permanent resolution to the problem of piracy. We are the first, in France to try to build a national grand alliance around clear and viable proposals." Geoff Taylor of the British record institute stated that: "We will continue to pursue voluntary arrangements, but unless these are achieved very soon we believe that the UK Government must act, as the French government has, to ensure that the urgent problem of internet piracy is tackled effectively."

Further details are available inline from:
[5] EEEE
[6] Supra Note 86

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