The Internet, in its ubiquitous appeal in our lives, branches beyond the desktop and into giving users greater mobility and an array of freedom. It as well gives users more flexibility to express ideas and conduct activities. Its use generates data about what the users access, shares, comments on, and what the user buys and sells. Users may have a different life than what it appears to be in the physical, when considering the social media life that users can have and is posted on the Internet about others. Such communications and the characteristic data establish a profile of the users that far exceeds that of the day to day physical life of the cyberspace active individual or business. This intro seeks to set the stage for what can be possible infractions committed by a user of the Internet and what legal issues can arise. This is not intended to be an exhaustive treatment of the subject of torts but it hopefully gives a sense of possible concerns that users should acknowledge and attend. This post does not address cyberbullying, cyber harassment, stalking, and doxxing that also are prevalently occurring on the Internet.
We all see advertisements for lawyers and they are mostly formatted about a particular harm that either has occurred, is potentially possible, or a warning about the opportunity to make a claim regarding a possible civil harm for a lucrative class action suit. The realm of tort law is about a duty to not harm others or the duty to conduct activities and behaviors in such a way that it would not harm someone. The tort area of law addresses those acts that are intentional, negligent, based on a standard (strict liability) not contingent on fault, affect privacy, and have an economic impact. These types of torts are unlike the ones that arise on events of Internet torts.
Internet torts tend to cover the issues of privacy and intentional infliction of emotional distress. They may even cross the line of economic torts and commercial interference, along with defamation. The variant pertaining to privacy are related to the causes from unreasonable intrusion into someone seclusion, misusing someone’s name or image, publishing someone’s private information, and placing someone in a false light in the public eye. Not all states adhere to the latter of the four, the State of Florida being one that deems it related to defamation.
The online availability of information about someone to arise to the level of breaching someone’s seclusion would have to meet several criteria. The criteria for seclusion to be intruded requires intent to do so; the subject is one that the subject person has right to keep private; and the intrusion would be objected to by reasonable standards. The expectation of privacy is about the intrusion into some area of life that it is objectively deemed to be private. The online issue occurs when someone’s photo is taken in a public and posted on the Internet. The protections for facial recognition is currently being debated among the courts.
Misuse or misappropriation of a subject’s name or image arises when the subject has a right to control the commercial use of image or name. The issue giving cause for suit is when the violation of using someone’s image was done without consent or beyond the score of that was consented to by the subject person. This brings together the invasion of privacy tort and right of publicity, coupled with the defendant’s advantage.
Internet publishing of someone’s private information runs a foul when the information is private and it is of the nature that would be offensive to the reasonable person if published. The only exception to this if the information is of a public concern. The information that is published must be true to be effectively construed as committing the tort of public disclosure of private facts. Social media interaction could present exposure to the person who make public someone else’s private information. The false light issue is related to invasion of privacy and as well related to defamation. The tort is about the defendant publishing on the Internet information that would attribute views, characteristics, and behaviors to the subject person that characterizes the subject person falsely and such characteristics would be deemed offensive.
The intentional infliction of emotional distress caused by the Internet tort requires that there was intent to do so or it was done recklessly otherwise knowing the truth and not appreciating the consequences. There is also the element of an outrageous conduct by the publisher. Where the subject person runs into difficulty under this claim is to prove the suffering of emotional distress and that the publishing by the defendant actually caused the emotional distress. The last point is the one related to economic torts that arise from Internet fraud, misrepresentation, interference with commercial contracts, and interference with business opportunities. These activities involve misrepresentation of information, concealment of facts that are material, with intent to deceive. In addition, the interference of contracts requires that there is a contractual relationship and that the defendant knows about the contract, along with a demonstration that the subject person of entity incurred damages from the commercial interference. The realm of Internet advertising runs across the problem of ad-blocker software that interferes with commercial online agreements.
With the possible varied Internet torts, the subject entity or person has the burden to demonstrate the requirements for establishing claims. Defenses can be raised for Internet torts, by impinging on matters that cloud the subject person’s claims of privacy, personality of information, damages, and public import of what was published. Any strict liability that a publisher may have will depend on the essential contacts for jurisdiction and the lack of adequate disclosures of potential harms and known harms for what was represented or sold on line. The subject of torts is prevalent in the realm of the Internet and the Internet presents concerns that users should be aware. Over all, the Internet realm is as well a litigation filled as is the physical business and social aspects of communications.