Liability for defamatory statements in Twitter hashtag feeds

Brett Debritz asks an interesting question:

what if somebody were to tweet an extremely defamatory or racially offensive remark using the Nova-nominated hashtag and it ended up on the company’s website for a sustained period of time? What if somebody sued? Who would be responsible: the author (if they could be identified) or the publisher?

Different jurisdictions will answer this question differently.  In England (and probably Australia), the question is likely to turn on two factors: (1) whether the website operator is regarded as the “publisher” of the relevant statement; and (2) whether the operator had actual knowledge of the statement.  By analogy with Bunt v Tilley and DesignTechnica v Metropolitan Schools & Google, there is a strong argument that the “publisher” is the person who authored the defamatory statement and caused it to be posted to Twitter.

Although Byrne v Deane suggests that someone who controls a facility (in that case, a bulletin board in a club house) to which defamatory material has been posted can be liable for its dissemination, there is little that a website operator can do to control the flow of comments in a Twitter hashtag feed: short of removing the feed widget entirely, tweets cannot be deleted and what shows up there is entirely within the purview of tweet authors and Twitter.  Whether Twitter faces liability is a more complicated question, and is likely to start implicating questions of safe-harbours under the E-Commerce Directive.  Read more »

Dutch Supreme Court upholds conviction for theft of virtual objects

Dutch Supreme Court upholds conviction for theft of virtual objects:

According to news reports, the Dutch Supreme Court has upheld a lower court’s conviction of a teenager for assaulting a younger boy and stealing virtual objects from an online RPG.  The victim was forced to transfer the objects to his attackers in the game world whilst being threatened with a knife in the real world:

The suspect’s lawyer had argued the amulet and mask “were neither tangible nor material and, unlike for example electricity, had no economic value.”

But the Netherlands’ highest court said the virtual objects had an intrinsic value to the 13-year-old gamer because of “the time and energy he invested” in winning them while playing the game. …

It said he and another youth beat and kicked the boy and threatened him with a knife until he logged into RuneScape and dropped the objects in 2007.  One of the thieves, who was also playing the game, was then able to pick up the items, making them his virtual property.

The essence of the Court’s reasoning was: “due to the digitization of society, a virtual reality has been created, all aspects of which cannot be dismissed as mere illusion where the commission of criminal acts are not be possible” .  On the question of whether the objects could be considered “goods” (property capable of theft within the meaning of the Dutch Penal Code), the Court commented (with apologies for my poor translation):  Read more »

Stunning orbital timelapse as animated GIF - thank you,...

Stunning orbital timelapse as animated GIF - thank you, Internet.

Absurd ASA ruling upholds complaint over user reviews

Absurd ASA ruling upholds complaint over user reviews:

The UK Advertising Standards Authority has upheld a complaint that the popular travel reviews website TripAdvisor has misled consumers by implying that reviews were accurate.  According to the ruling:

consumers would understand the claims “Reviews you can trust”, “… read reviews from real travellers”, “TripAdvisor offers trusted advice from real travellers” and “More than 50 million honest travel reviews and opinions from real travellers around the world” to mean that they could be certain that the reviews posted on the site were from genuine travellers, and accurately reflected those travellers’ experiences of the places they visited.

We noted that reviewers were asked to agree to a declaration that their review was their genuine opinion of the hotel and that they had no personal or business affiliation with the hotel, or been offered an incentive to write a review for it. We also noted that reviewers were not asked to similarly confirm that they had no competitive interest in the place they were reviewing, or were posting a review on behalf of a competitor or other interested party, and we did not consider that agreeing to a declaration in itself would necessarily prevent non-genuine reviews from being posted on the site. Notwithstanding that, we understood that reviews could be placed on the site without any form of verification, and that whilst TripAdvisor took steps to monitor and deal with suspicious activity, it was possible that non-genuine content would appear on the site undetected.  Read more »

"Everyone knows the ACTA agreement [will] impact on civil liberties …, and still, everything is..."

““Everyone knows the ACTA agreement [will] impact on civil liberties …, and still, everything is being done to prevent the European Parliament from having its say in this matter. … I will not take part in this masquerade.””

- Kader Arif, rapporteur for the Anti-Counterfeiting Trade Agreement in the European Parliament. Meanwhile, the treaty, having been opened for signature, has been signed by the EU and 22 member states.

Copyright in photographic works has always had an uneasy...

Copyright in photographic works has always had an uneasy relationship with the idea-expression dichotomy, which generally limits protection to the physical manifestation of a work rather than its underlying principles or abstract concepts. In a decision sure to reignite the debate, Birss J has held that a photograph which reproduced the composition, subject matter and editing of the original infringes copyright: Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1.  The infringing photograph:

The defendant's infringing photograph

This conclusion is consistent with Bauman v Fussell and a long line of English and American cases.  It’s also a fairly logical result of applying Infopaq to a photograph, where the author’s intellectual creation consists of the choice and arrangement of moment, rather than the skill in capturing it.  (Arguably, the Court could also have made more of the original contributions arising from post-processing.)  The Court seems to have been influenced by the commercial context in which the copying took place:  Read more »

Some excellent analysis of the MegaUpload arrests and the blunt...

Some excellent analysis of the MegaUpload arrests and the blunt hammer of criminal copyright enforcement.

AFNIC, which administers the .fr ccTLD, has been held not liable...

AFNIC, which administers the .fr ccTLD, has been held not liable by a French court for failing to suspend a domain name about which a trade mark owner complained.  The decision is sensible, given the impossibility of a domain registry policing the uses to which all registered domains are put, and consistent with article 15 of the E-Commerce Directive.

From the World Economic Forum’s Global Risks 2012...

From the World Economic Forum’s Global Risks 2012 report:

The impacts of crime, terrorism and war in the virtual world have yet to equal that of the physical world, but there is fear that this could change. Hyperconnectivity is a reality. With over five billion mobile phones coupled with internet connectivity and cloud-based applications, daily life is more vulnerable to cyber threats and digital disruptions. The related constellation of global risks in this case highlights that incentives are misaligned with respect to managing this global challenge. Online security is now considered a public good, implying an urgent need to encourage greater private sector engagement to reduce the vulnerability of key information technology systems.

"pagophobia (noun) — the fear of ice or frost."

“pagophobia (noun) — the fear of ice or frost.”

- Probert Encyclopedia