Employer Liability When Employees Use Internet Communications For Offensive Purposes

What happens when you have a rogue or even out of control employee that uses an office computer to send or even post threats of great bodily harm or uses an office computer to generate other highly offensive communications? Can an employer who ends up being sued for such conduct assert a defense of immunity under the provisions of the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230. This particular federal law defense of immunity actually does preempt inconsistent state law that might otherwise impose liability in certain circumstances. The Act immunizes “provider[s]… of an interactive computer service” (the employer) where “another information content provider” (the employee) has initiated the offending activity.

While the facts considered recently by a California Court of Appeal in Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 are unquestionably extreme and will not likely be encountered in garden-variety employment situations, the CDA immunity defense could well apply in more benign or commonplace circumstances as a result of the court’s ruling in this particular case.

In the Delfino case, the court considered a situation in which unbeknownst to his employer, a very angry and upset employee sends anonymous emails to various adversaries. He also created posts on Internet bulletin boards, threatening great bodily harm and death to these various individuals.

In making this illicit communications, the employee used the computer systems of his employer. The victims of these horrible threats and postings ended up contacting the FBI. The FBI in turn traced the emails and postings to the employee’s office computer. This was accomplished by by tracking the emails and postings back through the originating IP address.

The employee admitted that he engaged in the in the conduct of which he was accused. In the end, criminal charges are filed against him.

The employer terminated the employee. The victims of the employee’s threats sued the employee and the employer for intentional and negligent infliction of emotional distress, and negligent supervision or retention. The plaintiffs in the lawsuit claimed the employer was aware that the employee was using its computer system to threaten them. The further argued that the employee took no action to prevent the co-defendant employee from continuing to make threats over the Internet.

The ultimate question before the court in the case was: Can the employer be liable under these circumstances?

Some may consider this particular scenario far fetched. The case was presented as one of first impression in Delfino v. Agilent. The California appellate court determined that an employer could in fact assert the immunity defense under the Communications Decency Act of 1996 (CDA), 47 U.S.C. 230.

In asking the court to dismiss the plaintiffs’ case, the employer filed a motion for summary judgment, in which it asserted that the employer was a “provider… of an interactive computer service”, and therefore entitled to complete immunity under the CDA. Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The statute also preempts inconsistent state law that would impose liability, saying: “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Section 230(e)(3), italics added.

The primary goal of the CDA has been to control the exposure of minors to indecent material over the Internet. Nonetheless, one of its other important purposes is “to encourage [Internet] service providers to self-regulate the dissemination of offensive materials over their services.” This was determined in the case of Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331, cert. den. (1998) 524 U.S. 937.

The CDA also been enforced in a manner so as to avoid the chilling effect on Internet free speech that would occur if tort liability ended up being imposed on companies that do not create potentially harmful messages but are simply intermediaries for their delivery. Id. at 330-331.

Accordingly, Section 230(c)(2) immunizes from liability an interactive computer service provider or user who makes good faith efforts to restrict access to material deemed objectionable. However, the provider must make a good faith effort to restrict access to material that is deemed objectionable.

Drawing on prior CDA cases that actually were beyond the employment context, the Delfino court ruled that there are three essential elements that a defendant must establish in order to claim section 230 immunity. These three elements are determined by the court are:

(a) the defendant is a provider or user of an interactive computer service;

(b) the cause of action treats the defendant as a publisher or speaker of information; and

(c) the information at issue is provided by another information content provider. Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 830.

In considering the first element (whether the employer was a provider or user of an interactive computer service), the court ruled the question a matter of first impression. In its judgment, the court specifically held: “We are aware of no case that has held that a corporate employer is a provider of interactive computer services under circumstances such as those presented here. But several commentators have opined that an employer that provides its employees with Internet access through the company’s internal computer system is among the class of parties potentially immune under the CDA.” Delfino, 145 Cal.App.4th at 805.

Prior courts had interpreted the term “interactive computer service” broadly in their own decisions and rulings. (For example, in Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018, 1030, fn. 15, cert. den. (2004) 541 U.S. 1085), the court held that the employer was a “provider of interactive computer services” under the CDA. Id. At 806.

Considering the second element of the test, (whether the cause of action treated the defendant as a publisher or speaker of information), the court found that plaintiffs, in alleging that the employer was liable for the employee’s cyber threats, sought to treat the employer “as a publisher or speaker” of those messages. (sec. 230(c)(1).) Id.

On the last element of the test, (whether the information at issue was provided by another information content provider), there was no dispute that the employee was the party who had authored the offensive e-mails and postings. Moreover, there was no evidence that the employer played any role at all in “the creation or development” of these threatening and offensive messages and postings. Id. at 807-08.

In the end, the court concluded that the employer satisfied all three of the elements necessary to establish immunity under the CDA. Therefore, the court of appeal did affirm the trial court’s grant of summary judgment in favor of the employer. The court of appeals agreed that the grant of immunity under the CDA was proper pursuant to the terms and conditions of that law.

In its decision, the court also noted that, even if plaintiffs’ claims had not been barred under section 230(c)(1), granting summary judgment to the employer was nonetheless proper. The court reached this conclusion because plaintiffs failed to establish a prima facie case on their claims against the employer. Id. at 808. In this regard, the court specifically held that there was no indication that the employer ratified in any manner the employee’s conduct, and that the employer could not be liable under theory of respondeat superior. Id. at 810-12. In addition, there was not even any evidence that the employer was even aware of the employee’s conduct. Id. at 815.

In its holding and order, the court affirmed the long established principle that an employer will not be held vicariously liable for an employee’s malicious or tortious conduct in a situation in which the employee substantially deviates from his employment duties for personal purposes. The court additionally offered what can be considered an important teaching point on the theory and principle of ratification under California law.

The court noted that imposing derivative liability on the employer for an employees actions need not be founded on respondeat superior. Such liability can also be based upon the doctrine of ratification as discussed in Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App.4th 833, 852). In that case, the court observed that an employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct. This is done, in essence, by treating the conduct as that of the employer’s own. Id. at 810.

In considering what evidence can support the ratification theory, the Delfino court cited the California Civil Code 2339. The court, in citing that provision, determined that an employer’s failure to discharge an employee after knowledge of his or her wrongful acts may be used as evidence that can support ratification of that employee’s conduct.

In the end, there were a number of lessons that have been learned in the aftermath of Delfino. This includes the fact that although employers can take some degree comfort that the CDA can offer them immunity if out of line employees make offensive or threatening Internet postings or emails, conservative employers should take corrective actions immediately against offending employees when such conduct is discovered. This action potentially should include termination, if the circumstances so warrant. Employers should institute certain policies and procedures that prohibit employees from using the employer’s computers to post or send threatening or offensive information. Moreover, since CDA immunity will be lost if the employer cannot establish that the information at issue was “provided by another information content provider”, cautious employers will also need to avoid any conduct that would suggest the employer has promoted, sponsored, initiated, or ratified the offending material in any way, shape or form.

Robert Masud, Esq. is the principal of Masud & Company LLC, a law firm for the world of business, finance and the internet. Find out how our lawyers can help you at http://www.masudco.com.

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Why Sites Must Know California Internet Regulations

Most sites on the web are at least faintly familiar with the implementation of legal regulations related to their sites. Most, however, have never heard of the California Catch-22. Most sites tend to view complying with legal regulations as a somewhat amorphous subject. You know you are supposed to do something, but are not particularly sure why or what to do. This leads to the rather humorous situation where many sites have terms and conditions that are completely inapplicable the what they are doing and also look startlingly similar to terms and conditions found on other sites. One might even imagine a bit of “cut and paste” was going on, but who am I to say!

Much of the confusion is understandable. It comes from the lack of clear legal directives by the federal government. In most areas, you get vague “suggestions” put forth by an impotent FTC.

Interestingly, one state has taken over for the federal government – California. Because the right of privacy is actually mentioned in the constitution of the state, unlike in the federal version, the state has passed numerous laws regulating how sites must handle visitors information from a privacy perspective, sales information, security efforts and so on. Frankly, it is a pretty amazing that a group of state politicians managed to pull it off. There are laws ranging from how a privacy policy must be set up to requirements that you disclose identify theft events to the media. This is why you see major companies issuing press releases about security breaches leading to identify theft.

As a site owner located outside of California, you are probably wondering why you should care about the laws of California. Well, you better be in compliance because California has a unique way of defining what sites the laws apply to. Nearly all of the relevant California legislation contains provisions defining jurisdiction by the visitor, not the site.

So, what does this mean in plain English? You must comply with the laws if you have any customers that are residents of California or from which you obtain certain types of information. If you make a sale to a California resident, you must comply. If you collect the name, email address and so on as part of creating a newsletter mailing list, you must comply!

Given the size of the California population, it is the rare site that never makes a sale or collects information from a California resident. In short, you need to comply with everything from the California Online Privacy Protect Act to the various identify theft prevention and notice regulations. Fail to do so, and it can come back to haunt you when things go wrong.

Richard A. Chapo is an internet attorney with SanDiegoBusinessLawFirm.com.

E-Discovery Emergence in Civil Litigation

The law, as a means of administering dispute resolution and criminal accountability, must be able to adapt to revolutions of industry or technology.  We are currently in the beginning years of a technological revolution that will only grow and continue to change the way humans live their lives.  Computer and internet use have changed the way that people and business think and act.  In today’s judicial system, a case (either civil or criminal) is often decided by the evidence produced and discovered prior to trial.  As computers have become the integral components of any successful business operation, the records on those computers have become more difficult to discover.  Not only because of the difficulty of gaining access to an adversary’s computer records, but also because many seasoned attorneys do not even know what to look for when they do gain access.  Adding to the confusion is a lack of guiding procedural and case law.  New methods of discovery have hampered older, traditional attorneys who carry with them the knowledge and experience from the days of paper and pen.  The old rules are obsolete, and in today’s world if you can not keep up with the technology and developments in the law then you will be left as ineffectual as the paper and pen you hold in your hand.

In response to the increased demands for structure in E-discovery, the ABA has proposed new Amendments to Civil Discovery Standards relating to the use of E-discovery.  In part, these proposed amendments are aimed at providing guidance for evidence retention, destruction and production.

Electronic evidence presents many issues not previously experienced with more traditional forms of evidence.  Certain forms of electronic evidence may be misleading and prejudicial to one party or the other, because one piece of evidence may only represent an initial draft of a document, containing information leading to the inference of liability.  From a simple printout of electronic evidence, it can be extremely difficult to ascertain whether that evidence is the first or final draft, and whether that evidence has any impact on the dispute.  In many ways electronic evidence provides for easier access because there is no need to search through cumbersome boxes of paper, but conducting the actual discovery process may exponentially increase the costs to both the producing and discovering parties.  It takes substantial time to track down trails of information throughout a company’s network.  From a plaintiff’s point of view, electronic evidence is difficult to destroy, as it takes an extremely complicated and sophisticated process to completely erase an electronic signature and metadata associated with the files.  As demonstrated, electronic evidence may at times be more difficult to find, but conversely, it is also harder to destroy.  This juxtaposition of qualities can make a process that appears more concise in theory, to actually become more cumbersome and costly when actually put into practice.

In response to these growing concerns, as part of its proposed amendments, the ABA has focused on E-discovery issues ranging from pre-trial conferences and electronically stored information to a party’s failure to comply with discovery or to cooperate.  Unnerving to many plaintiff’s attorneys is proposed Amendment 37(f), which provides that:
“Unless a court order requiring preservation of electronically stored information is violated, the court may not impose sanctions under these rules on a party when such information is lost because of the routine operations of its electronic information system if the party took reasonable steps to preserve discoverable information.”

This is perhaps the most troublesome (at least for plaintiff’s attorneys), because it effectively creates a safe-harbor for the destruction of electronic evidence.  Sanctions would be barred when information is destroyed as a result of routine destruction practices.  The rule mentions nothing about what a reasonable destruction practice is or whether a party must freeze those practices once it learns that there is a potential for litigation.

Other important proposed amendments include:

  • Rule 33(d). Under the traditional Rule 33, a party responding to an interrogatory could produce business records as a substitute for explicitly responding to the interrogatory. Under Amended Rule 33(d), the responding party will be permitted to produce electronic dates and records when responding to interrogatories provided that the requesting party can easily identify and locate the sought after information.
  • Rule 34(b). The new proposed amendments do not require an attorney to choose a particular evidentiary format when responding to discovery requests, but its mere mention suggests a policy toward favoring electronic evidence.  When a requested production format is not specified, the responding party should produce evidence in the manner in which that information is ordinarily maintained or, alternatively, in a form that is reasonably easy to access and use.
  • Rule 26(b)(5)(B).  This amendment addresses the inadvertent production of privileged or protected information. This rule will allow a party who unintentionally discloses the privileged information to retrieve it from the accidental receiving party unless that party can prove that they have a right to that information.
  • Rule 45. This amendment to Rule 45 would essentially allow parties to subpoena electronically stored information pursuant to any of the other adopted amendments contained in the Rules.

These are not the only proposed changes, but this brief summary of the proposed amendments is a good demonstration of the increasing preference for electronic discovery.  The legal world is changing and those attorneys who are unable to keep up with the changes will be left in the dust.  This move by the ABA should serve as a sign to those attorneys frightened by technology and advancements in the law.  Electronic discovery is here to stay, unlike those who refuse to welcome the changes to the judicial discovery process.

This article was written by Nicholas Deleault, a Franklin Pierce Law Student. Nicholas writes select legal articles for the Law Firm of Goldstien and Clegg, a Massachusetts cyberlaw firm.

Legal Significance Of Digital Signatures

A cornerstone of United States contract law is the general application of the Statute of Frauds to contractual agreements. Emerging forms of electronic commerce and new types of contractual relationships have begun challenge the very idea of defining the four corners of a contract. Many obstacles concerning contractual relationships arise with the proliferation of electronic commerce, most notably determining what constitutes a valid signature. Traditionally, the Statute of Frauds is a collective term describing various statutory provisions that deny enforcement of certain forms of contracts unless they are reduced to writing and signed by the party to be charged. The problem with this traditional idea of the Statute of Frauds is how it relates to electronic commerce in determining whether the party being charged with the contract has actually “signed” the contract for purposes of enforcement.
Various forms of legislation dealing with internet law have attempted to define and describe digital and electronic signatures for purposes of determining enforceability.

Generally, there are two broad categories of signatures when dealing with electronic contracts.

1. Electronic Signatures (“E-Signatures”)
2. Digital Signatures

I. Electronic Signatures
The Uniform Electronic Transactions Act (UETA) defines electronic signature as “an electronic sound, symbol, or process attached to or associated with, an electronic record and executed or adopted by a person with the intent to sign the record.” UETA, §2. Often referred to as ‘click-wrap’ agreements, these forms of electronic signatures are given a broad presumption of enforceability through acts such as UETA and the Electronic Signatures in Global and National Commerce Act (ESGNCA/ “E-Sign”). These acts make it clear that binding contracts may be created by the exchange of email or by simply clicking “yes” on those click-on licensing agreements that we have all accepted w ith all types of internet transactions. Like the UETA, the ESGNCA does require that consumers affirmatively consent to the click agreements and that the vendor must provide the consumer with a clear and conspicuous statement regarding the effect of agreeing to click, but parole evidence is rarely allowed in order to prove or disprove intent to contract. ESGNCA§101(c)1. By simply clicking “I agree” intent is presumed.

The widespread enforceability of electronic signatures is also recognized as completely valid for purposes of liability protection by the Digital Millennium Copyright Act. DMCA§512(3)(A)(i). As a relatively settled area of internet law, it is important to understand the enforceability of electronic signatures, whether or not intent is manifest from the face of the agreement itself. Since these click wrap agreements are presumptively enforceable, it is important to advise your clients regarding the potential pitfalls accepting terms of an online transaction without fully understanding what they are agreeing to. Simply accepting these terms may interfere with your client’s right to the judicial system for dispute resolution, as click-on arbitration clauses are also generally enforceable. Your clients will not be able to rely on the Statute of Frauds in order to demonstrate that there was no intent to contract. With electronic signatures, intent is an objective standard, generally determined by the simple click of a mouse.

II. Digital Signatures

Unlike electronic signatures, digital signatures are more often than not used as a means of demonstrating affirmative intent. The problems with digital signatures do not stem from inadvertent agreement to terms, but rather from the security and confidentiality of the digital signatures. Generally speaking, digital signatures are encrypted electronic signatures that a third party (often referred to as the certification authority) authenticates as genuine. Unlike the more general electronic signature, a digital signature must be unique and strictly under the sole custody of the party using it. Unlike electronic signatures, where a typed name, a company name or even a logo can all bind the party to be charged by its mere presence, digital signatures offer the agreeing party greater levels of security and efficiency. The general types of signatures will not be enforceable as a digital signature. Because of the authentication requirements of a digital signature, it should be recommended that clients rely on the use of digital signatures for any high-profile or high liability electronic contract.

Digital signature use will only increase in use in the future, as parties to all transactions will seek a heightened level of information security without the fear of accidentally agreeing to unfavorable terms. While there is an inherent fear of paperless transactions, especially with more traditional attorneys and companies, the use of digital signatures makes commerce faster, more secure and more effective and should be recommended to clients when appropriate. The use of digital signatures is even more effective when dealing in international trade, making it no longer necessary to fly overseas in order to demonstrate intent to sign a contract.

While understanding and zealously advising clients to the use of various forms of signatures for electronic commerce is important, it is also imperative to understand that we are still in the early years of a technological revolution, and that part of being an effective advocate is keeping up to date on advancements in the law. Electronic and digital signatures are only the beginning. Advancements in technology will soon allow for the widespread use of biometric identification as a means of demonstrating intent to contract. Principles of contract law will continue to evolve with technology and while the application of contract principles and the Statute of Frauds will not substantially change, their interpretation and use surely will.

This article was written by Nicholas J. Deleault, Pierce Law Center ‘07. Nicholas writes select legal articles for the Law Firm of Goldstien and Clegg, a Massachusetts cyberlaw firm.

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Resolving Domain Name Disputes

With the continued emergence of the internet as a means of conducting commercial transactions, name recognition has become increasingly important. Companies have realized the value in having their company name identified with their domain name. Registration of domain names has traditionally been dealt with on a first come, first serve basis. Prior to 1999, a company named Network Solutions Inc., was essentially the only company used to register domain names. Since then however, many registrars have been granted the authority to register domain names, after being approved by The Internet Corporation for Assigned Names and Numbers (or “ICANN”). ICANN is a non-profit organization organized strictly for the purpose of managing domain names and registrations. All registrars currently operate on a first come, first serve basis, stressing the importance of early registration.Disputes and conflicts develop when there are two companies with similar names who desire the same domain name. Alternatively, there are many examples of people registering domain names simply because they know that a company or a person would like to use the name and they are seeking a quick buy off. When a company decides to register a domain name, a search must be done to ensure that no one else currently owns the desired name. When a company discovers that someone else owns the desired domain name, that company can either choose another name or decide to fight over the rights to the name.

There are several manners in which domain name disputes can be resolved. The most traditional (and slowest) method is to turn to the court system. Courts do retain the power to determine ownership over domain names and to cancel or transfer ownership of the names. Legal arguments taking place within the court system traditionally focus on trademark law. Unless a likelihood of confusion can be shown, it is difficult to get the ownership of a domain name changed. A likelihood of confusion can be a challenge to demonstrate without already having some level of name recognition. In response to the issues faced within the court system, Congress passed the Anti-Cybersquatting Consumer Protection Act in November of 1999. The Act makes it easier for individuals or companies to demonstrate claims to a particular domain name by showing a lower level of confusion than would be required by a trademark infringement claim. The Act does require, however, that the challenging party demonstrate that the registering party acted in bad faith. Coincidental registration will not be enough to force an invalidation or transfer of ownership of a domain name.

Because of the challenges faced in attempting to invalidate ownership of domain names through the legal process, it is helpful, and sometimes necessary, to turn to other means of dispute resolution. The most used alternative to the court system is the Uniform Domain Name Dispute Resolution Policy, established by ICANN. See, http://www.icann.org/udrp/udrp.htm. This policy is currently used by all accredited registrars in resolving domain name disputes, and every person or company registering a domain name must agree to the dispute resolution procedure contained within the policy. The policy essentially allows a trademark owner to show true ownership over the domain name by showing:

That the challenger owns a trademark (either registered or unregistered) that is the same or confusingly similar to the registered domain name;

That the party that registered the domain name has no legitimate right or interest in the domain name; and

That the domain name was registered and/or used in bad faith.

This dispute resolution procedure is much less expensive than taking a conflict to the court system. The process takes place through an administrative proceeding where a panel will hear the two sides and determine whether ownership over the domain name should be transferred or canceled. All three points stated above must be proven in order for ownership over the domain name to be transferred or canceled. Failure to demonstrate one of the elements will result in the panel’s refusal to invalidate the name. One of the advantages of the procedure outlined in the policy is that arguments and rebuttals can be heard through email, greatly reducing the cost of the dispute resolution. Other than the court system, the ICANN method is the most widely used and most efficient means of determining ownership over domain names.If you fear a dispute in the future or simply want to protect yourself or your company moving forward you should:

Register any and all valid services and trademarks as early as possible,

Attempt to resolve any domain name conflict outside any formal proceedings,

Don’t give in to unreasonable monetary demands, and Collect evidence necessary to show; That the challenger owns a trademark (either registered or unregistered) that is the same or confusingly similar to the registered domain name;

That the party that registered the domain name has no legitimate right or interest in the domain name; and

That the domain name was registered and/or used in bad faith.

Name recognition is often the key to any successful marketing campaign and only through due diligence can you be sure that you are doing all you can to maximize your company’s value. A qualified attorney can assist in guiding you through the challenges faced in domain name dispute resolution.

This article was written by Nicholas J. Deleault, Pierce Law Center ‘07. Nicholas writes select legal articles for the Law Firm of Goldstien and Clegg, a Massachusetts cyberlaw firm.

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On-line Solicitation of a Minor For Sexual Purposes: The Legality Behind The Charge

On-line solicitation of a minor for a sexual purpose, that is, with intent to commit a sexual activity with that minor, is one of the most investigated and targeted activities by both federal and state law enforcement in this day and age. The on-line solicitation as it is known as, is usually in the form of contact by electronic mail (e-mail), instant messaging, or other use of the Internet.

The contact with a minor (underage person), often a male contacting an underage female, becomes a violation of state and federal law when the conversation turns to content of a sexual nature to the extent that it appears that the contacting person is communicating in a sexually explicit manner with the contacted person.

Often, persons are prosecuted pursuant to these laws when a person arranges to meet the minor to engage in sexual activity. However, the person making the on-line communication may be prosecuted even if he does not follow through with contact with the minor, but rather merely communicates in a sexually explicit manner. Also, persons can be prosecuted here if they forward sexually explicit material to the minor.

Both the United States Code (federal criminal laws) and the Texas Penal Code (state criminal laws) contain laws against on-line solicitation of minors for a sexual purpose. Below is the law in state courts in Texas against solicitation of a minor using the Internet (on-line solicitation), as set out in Texas Penal Code Section 33.021:

ONLINE SOLICITATION OF A MINOR (Texas Penal Code 33.021)
(a) In this section:
(1)”Minor” means:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.
(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.
(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.
(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

DEFENSES TO AN ON-LINE SOLICITATION CHARGE
The following are defenses to the On-Line Solicitation of a Minor per Section 33.021 of the Texas Penal Code, and are contained in paragraph (e) of this statute:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

The following are not defenses to this state statute of on-line solicitation, as per the statute itself, Section 33.021. This portion of the statute actually prevents a person from claiming that he was not serious about the content of the communication with the minor:
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.

Neil Lemons represents Dallas-based criminal attorney John Teakell, who offers defense for Online solicitation of a “minor” as well as other sexual offenses defense. For more information, visit http://www.teakelllaw.com.

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Defamation And Slander On The Internet

As social networking sites and internet blogs continue to increase in both popularity and use, the opportunities for defamatory and libelous actions increase proportionally. Defamation, sometimes called “defamation of character”, is spoken or written words that falsely and negatively reflect on a living person’s reputation. Slander is generally spoken defamation, while ‘libel’ is written. Blogs or social networks in which defamatory statements are written or recorded present several potential sources of liability and recovery for the person whose character was defamed. In cases where the defamation is proved, damages are presumed and often enforced with liberality.

Operators of blogs are generally immune from liability for defamatory statements posted on their websites, as long as they did not contribute to the posting. In 2003, the Ninth Circuit Court of Appeals ruled that a listserv moderator and operator of a website which allegedly published defamatory statements provided by a third party was eligible for immunity under the Communications Decency Act (CDA). Batzel v. Smith, 2003 US App.LEXIS 12736 (9th Cir. 2003). However, if the online service provider plays an active role in soliciting information from users that leads to the defamatory act, the operator may not be protected by the safe harbor provisions of the CDA. In Carafano v. Metrosplash.com, Inc., a federal court ruled on the application of the safe harbor of the Communications Decency Act (CDA). The defendant in that case operated a matchmaking website known matchmaker.com. As part of its service, the defendant collected profiles of singles based on an extensive questionnaire. The plaintiff sued Metrosplash because of a false profile of her which an unknown user had posted to the website. The court ruled that by creating the extensive questionnaire, Metrosplash played an active role in developing the information that had been posted. Furthermore, the court ruled that Metrosplash was an information content provider and thus not eligible for the CDA’s safe harbor provided to “interactive computer services.” Carafano v. Metrosplash.com, Inc., Case No. CV 01-0018 DT (CWx) C.D. Cal. 2002) (subsequently reversed by appeals court). While operators of blogs and services are generally immune from such liability, the more active the service is with its member’s, the greater the likelihood of potential liability as a publisher of defamatory materials.

Another potential source of liability is the person who actually posted the defamatory materials. As with more general defamatory statements or materials, a poster can be held personally liable for anything posted which reflects falsely and negatively on a living person’s reputation. Posting false and explicit claims regarding a person will generally be held as defamatory for purposes of liability. However, other issues arise concerning the anonymity of the person posting the information, and if known, the jurisdiction in which they are subject.

Jurisdictional issues may arise in situations where the poster had no reason to expect that the effect of the posting would be felt in a certain jurisdiction. However, in defamation cases jurisdictional disputes are liberally ruled upon in favor of the victim. In Griffis v. Luban, the Minnesota court of appeals ruled that Alabama had jurisdiction over a Minnesota defendant who posted defamatory messages on the Internet. The defendant repeatedly posted messages on an Internet newsgroup attacking the plaintiff’s professional credentials. The plaintiff initially obtained a $25,000.00 default judgment in Alabama, which she was seeking to enforce in Minnesota. The Minnesota court ruled that the Alabama court had properly exercised jurisdiction because the effects of the messages were felt in Alabama and that the defendant should have expected that she would be sued there. An important factor in the ruling was that she had actual knowledge of the effect of the defamatory statements on the Defendant. Therefore, the Minnesota court enforced the $25,000.00 default judgment. Griffis v. Luban, 633 N.W. 2d 548 (Minn Ct. App. 2001).

However, there are cases where courts have refused to allow the exercise of personal jurisdiction based on defamatory statements. In a Pennsylvania case, the court refused to exercise jurisdiction over a New York defendant who had posted defamatory comments about a defendant on an offshore betting website. The court held that since the comments were not specifically directed at Pennsylvania, the court could not exercise personal jurisdiction over the defendant. English Sports Betting, Inc. v. Tostigan, C.A. No. 01-2202 (E.D. Pa. 2002).

The problems with bringing defamatory actions based on internet postings largely lie in proving that the defendant actually made the posting. If that connection can be made, a much stronger case can be presented and jurisdictional issues can be tackled. An attorney who is experienced in cyberlaw and internet cases can improve your chances in prevailing in any such case. Without the help of an attorney who can find and connect the evidence, most internet defamation cases will fail for lack of evidentiary sources and experience.

This article was written by Nick Delaunt, for the Law firm of Goldstein and Clegg, LLC, a law firm representing clients in online defamation actions.

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