The Law And The Internet: A Complex Relationship

The internet is a unique entity that exists in all countries and none at the same time. As such, it is difficult to control what happens online and how laws are applied. Internet law, or cyber law, is a complex and ever-evolving field that incorporates principles from various traditional legal fields, such as privacy and contract law. It covers a range of topics, from website creation and linking web pages to online privacy and data protection. The internet's global nature also means that it cannot be governed by a single country's laws, and there are often inconsistencies between jurisdictions. While some countries heavily censor the internet, others have specific laws governing internet issues, such as Canada's Anti-Spam Legislation and the US's Federal Trade Commission Act. The European Union has also implemented the General Data Protection Regulation (GDPR) to protect its citizens' data privacy. With the internet constantly evolving, internet law must remain flexible and adaptable to cover the countless possibilities that arise.

Online privacy laws

The internet impacts various areas of our lives, and internet law is a mixture of the various laws that apply to these areas, plus some areas of law that have been developed specifically for the internet. There is no single law regulating online privacy. Instead, a patchwork of federal and state laws apply.

Federal Laws

Some key federal laws affecting online privacy include:

• The Federal Trade Commission Act (FTC) (1914) – regulates unfair or deceptive commercial practices. The FTC is the primary federal regulator in the privacy area and brings enforcement actions against companies.
• Electronic Communications Privacy Act (ECPA) (1986) – protects certain wire, oral, and electronic communications from unauthorised interception, access, use, and disclosure.
• Computer Fraud & Abuse Act (CFAA) (1986) – makes unlawful certain computer-related activities involving the unauthorised access of a computer to obtain certain information, defraud or obtain anything of value, transmit harmful items, or traffic in computer passwords.
• Children’s Online Privacy Protection Act (COPPA) (1998) – requires certain websites and online service providers to obtain verifiable parental consent before collecting, using, or disclosing personal information from minors under the age of 13.
• Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (2003) – governs sending unsolicited commercial emails and prohibits misleading header information and deceptive subject lines.
• Financial Services Modernization Act (GLBA) (1999) – regulates the collection, use, and disclosure of personal information collected or held by financial institutions and requires customer notices and a written information security program.
• Fair and Accurate Credit Transactions Act (FACTA) (2003) – requires financial institutions and creditors to maintain written identity theft prevention programs.

State Laws

Many states have also adopted laws affecting online privacy, including consumer protection statutes, laws that protect certain categories of personal information, information security laws, and data breach notification laws.

International Laws

While there is no global federal law, some international laws have been created to protect the personal information of citizens within certain jurisdictions. For example, the European Union’s General Data Protection Regulation (GDPR) and California’s California Consumer Privacy Act (CCPA) were passed in 2018 to protect the personal data of EU and Californian citizens, respectively.

Online defamation laws

Defamation is a false and unprivileged statement that harms someone's reputation and is published "with fault," meaning as a result of negligence or malice. Defamation can be further classified into libel and slander. Libel is written defamation, while slander is spoken defamation.

Elements of a Defamation Claim

For a defamation claim to be valid, the following elements must be proven:

• Publication to someone other than the person defamed
• A false statement of fact
• The statement is understood as being about the plaintiff and tending to harm their reputation

Truth as a Defense

Truth is an absolute defense to a defamation claim. However, proving the truth can be difficult and expensive.

Opinions and Defamation

Merely labeling a statement as an "opinion" does not make it so. Courts consider whether a reasonable person could understand the statement as asserting a verifiable fact. Context is crucial in these cases, with statements made in the context of an internet bulletin board or chat room more likely to be considered opinions or hyperbole.

Defamation Involving Public Figures

Public figures, such as politicians and celebrities, must prove "actual malice" in defamation cases. This means they have to show that the defendant made a false statement knowing it was false or with reckless disregard for the truth.

Proving Online Defamation

Online defamation can be challenging to prove, as it often involves anonymous or pseudonymous individuals. Additionally, statements may not be actionable if they are clearly expressing an individual's opinion, and a reasonable person would not understand them as asserting facts.

Damages in Internet Defamation Lawsuits

Damages in internet defamation cases can include general monetary damages for loss of business, harm to reputation, and other compensatory damages. Punitive damages may also be awarded to punish the defendant and send a message about the consequences of spreading lies online.

Intellectual property laws

Copyrights grant authors exclusive rights over their original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright laws incentivize the creation and dissemination of creative works by allowing authors to profit from their creations.

Trademarks, on the other hand, protect words, names, symbols, or devices used to identify and distinguish the goods or services of one company from those of others. They help prevent consumer confusion and protect businesses from unfair competition.

Patents confer property rights to inventors, allowing them to exclude others from making, using, offering for sale, selling, or importing their patented inventions.

Trade secrets refer to confidential business practices or information that provide a competitive advantage. They are protected as long as they are not generally known in the industry and reasonable efforts are made to maintain their secrecy.

The growth of the internet and advancements in technology have significantly impacted the field of intellectual property. The digital age has made it easier for people to access, share, and distribute creative content, but it has also made intellectual property more vulnerable to misuse and theft.

To address these challenges, various laws and regulations have been enacted to protect intellectual property online. For example, the Digital Millennium Copyright Act (DMCA) in the US provides a framework for addressing copyright infringement on the internet. It limits the liability of internet service providers who comply with its mandatory safeguards and extends copyright protection to computer programs, movies, and other audiovisual works.

Additionally, the Lanham Act, or the Trademark Act of 1946, allows for the exclusive claim to registered trademarks. The Anti-Cybersquatting Consumer Protection Act (ACPA) prevents people from claiming domain names that represent other legal entities.

While these laws provide a foundation for protecting intellectual property online, the constantly evolving nature of the internet presents ongoing challenges. The global reach of the internet and the varying laws across jurisdictions further complicate the enforcement of intellectual property rights.

To protect their intellectual property online, individuals and businesses should clearly identify their creations, use copyright and trademark notices, and familiarize themselves with relevant laws and regulations.

Online marketing policies

Marketing law relates to the statutes, case law, and rules and regulations that aim to prevent consumer harm resulting from deceptive marketing practices related to the sale of goods and services. These laws are particularly strict when it comes to food products, drugs, medical devices, and financial matters.

In the United States, the Federal Trade Commission (FTC) is the federal agency responsible for overseeing and regulating advertisers and creating marketing laws. The FTC enforces the INFORM Consumers Act, which requires online marketplaces to verify the identity of high-volume third-party sellers and make it easier for consumers to report suspicious conduct. The FTC also enforces the Consumer Review Fairness Act, which protects consumers' ability to share their honest opinions about a business's products, services, or conduct on social media.

The rules that apply to other forms of advertising also apply to online marketing. These standards protect businesses and consumers and help maintain the credibility of the internet as an advertising medium.

• Truth in Advertising: This refers to the body of law governing truthful marketing. It includes requirements for product endorsements, advertising to children, "Made in the USA" labels, health claims, and environmental impact claims.
• Data Protection and Privacy Law: Privacy refers to the moral right of individuals to avoid intrusion into their personal affairs by third parties. It is a major concern for consumers, especially with the increase in identity theft. Marketers must ensure that their activities are consistent with the latest data protection and privacy laws.
• Intellectual Property Rights: Intellectual Property Rights (IPRs) protect designs, ideas, and inventions, including content and services developed for e-commerce sites. IPRs provide a legal framework that safeguards various forms of digital creative expression, innovations, and proprietary assets.
• Online Advertising Law: Online advertising law encompasses a complex framework of regulations and guidelines that govern how businesses can advertise their products and services on digital platforms worldwide. Marketers must stay informed about these laws to navigate the digital landscape responsibly and ethically.
• Contract and Distance-Selling Law: Online contract law relates to the sales process and is relevant to transactional e-commerce businesses. Buyers' rights are protected by distance-selling law, which is subject to international legislation.
• Brand and Trademark Protection: Online brand and trademark protection covers the use of brand names within domain names and trademarks within other websites and online advertisements. Companies should regularly check their domain names for potential 'squatters'.

Online contract laws

Online contracts, also known as electronic contracts or e-contracts, are agreements that are created and signed over the internet. They are a fast and convenient way for individuals and organisations to enter into legally binding agreements.

In 2000, the US federal government passed the Electronic Signatures in Global and International Commerce Act (ESGICA), which made electronic signatures as legally valid as traditional paper contracts. This has been beneficial for companies that do business online, especially those offering insurance, financial, and household services.

However, not all agreements can be e-contracts. Some documents that cannot be in electronic form include:

• Wills, codicils, and will trusts
• Divorce, adoption, and other family-related legal documents
• Court notices, orders, pleadings, motions, and other court-related documents
• Notices of default, repossession, eviction, and foreclosure
• Notices of termination or cancellation of utility services
• Notices of termination or cancellation of life and health insurance benefits
• Documents legally required for the transportation of hazardous materials
• Notices of product recalls that impact health and safety

To be considered legally binding, a contract must include the following elements:

• An offer
• Acceptance of the offer
• A promise to deliver what has been accepted
• Consideration (something of value to be exchanged for the service or good)
• An event or time when the performance has to be made
• Terms and conditions for the performance
• Performance (delivery of the service or good, and receipt of payment)

Additionally, for a contract to be valid, it must:

• Have a legal purpose
• Involve a "meeting of the minds", where there is a mutual agreement between the parties
• Have consideration, where both parties agree to exchange something of value
• Involve legally competent parties who are not minors or mentally impaired, and are of sound mind
• Be entered into of the parties' own free will, without coercion or misrepresentation

Frequently asked questions