The Internet And Law: Who's In Charge?

Internet law, also known as cyberlaw, is a complex and evolving area of legislation that governs the use of the internet and its many forms. Unlike other fields of law, it is not a single, stable, and specific field of practice. Instead, it draws from various traditional legal fields, such as privacy and contract law, and applies them to the online world. The internet's constant evolution means that laws often struggle to keep up, resulting in uncertainty and the need for flexibility in legal frameworks. As a global platform, the internet also presents challenges for enforcement, as it is not bound by the laws of a single country. While some countries heavily censor online content, others advocate for the internet to be governed independently, with its own set of laws.

Online privacy laws

There is no single law regulating online privacy. Instead, a patchwork of federal and state laws apply. In addition, different jurisdictions around the world may have different interpretations of how to apply internet privacy laws.

United States

In the US, there is no one comprehensive federal law that governs data privacy. Internet regulation is a complex patchwork of sector-specific and medium-specific laws, including laws and regulations that address telecommunications, health information, credit information, financial institutions, and marketing.

The US Privacy Act of 1974 is arguably the foundation of many laws covering data and internet privacy in the US. The Act covers:

• The right of US citizens to access data held by government agencies and a right to a copy of that data.
• The right of citizens to correct any information errors.
• The need for agencies to collect only the minimum information relevant and necessary to accomplish its purposes.
• Restricting access to data on a ‘need to know’ basis.
• Restricting information sharing between federal (and non-federal) agencies – i.e., only allowed under certain conditions.

Other US laws that relate to online privacy include:

• The Federal Trade Commission Act of 1914
• The Children’s Online Privacy Protection Act of 1998
• The California Consumer Privacy Act
• The Gramm-Leach-Bliley Act
• The Health Insurance Portability and Accountability Act of 1996
• The Computer Fraud and Abuse Act

European Union

The European Union has an overarching data privacy law known as the General Data Protection Regulation (GDPR). This regulation sets guidelines for collecting and processing personal information from individuals who live in the European Union. GDPR applies regardless of where websites are based, which means that it should be adhered to by all sites that attract European visitors.

GDPR grants consumers a right to correct or rectify incorrect personal data, whereas the US's CCPA doesn't. GDPR also requires explicit consent at the point when consumers hand over their data. By contrast, CCPA only specifies that a privacy note is available on websites informing consumers that they have a right to opt out of certain data collection.

Online defamation laws

Online defamation is a growing concern, with the rise in social media use leading to an increased risk of defamation. Defamation is a false statement that damages someone's reputation, and it can be written (libel) or spoken (slander).

Online defamation happens across various platforms, including social media, review sites, and messaging apps. It can be perpetrated by anyone, but most cases stem from personal grudges related to business or personal interactions.

To prove online defamation, a plaintiff must typically show that:

• The defendant made a false statement of fact.
• The statement was made to someone other than the plaintiff.
• The statement harmed the plaintiff's reputation.
• The defendant was negligent about whether the statement was true or false.

Public figures, like politicians and celebrities, must also show that the defendant acted with "actual malice", meaning they knew the statement was false or showed reckless disregard for the truth.

The truth is an absolute defence against defamation, but it can be difficult and expensive to prove. Opinions are generally not considered defamatory, but if an opinion is mixed with untruths or manipulations of the truth, it can be deemed defamation.

Defamation laws vary across states and countries, and it is essential to consult with a lawyer to understand your specific rights and options.

If you are facing online defamation, taking quick action is crucial. Contact the platform or website to remove defamatory content, and consider issuing a statement from an attorney to alert the individual of potential civil and criminal penalties. If the defamer is unknown, you may need to subpoena records from internet service providers or social media companies to identify them.

Damages in defamation cases can include general money damages, loss of business, harm to reputation, punitive damages, and legal fees. In some cases, defamation claims have resulted in multi-million dollar awards for plaintiffs.

Intellectual property laws

Copyright law provides authors with a set of exclusive rights when their expression is captured in a fixed, tangible medium. It is a form of protection provided by federal law to the authors of "original works of authorship", including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright law incentivizes the creation and dissemination of creative works. Copyright ownership includes the right to control derivative works, entitling the copyright holder to produce and prohibit others from producing derivative works.

To be protected by copyright law, a work must be creative and not consist solely of readily available information. For example, the Eighth Circuit held that Major League Baseball was not entitled to copyright protection for baseball statistics as they were facts in the public domain. On the other hand, if a person devises a creative or whimsical manner of conveying baseball statistics, such as colour-coded pie charts, that expression could be copyrighted.

Copyright law attaches to websites, photos, videos, blogs, music, e-books, software, and myriad other artifacts of expression captured in a fixed medium in cyberspace. Almost any use of the internet as a medium can make the author a creator of content.

In 1998, the US passed the Digital Millennium Copyright Act to protect copyright owners and address the increase in popularity of sharing digital content. The Act limits liability for internet service providers who comply with the law's mandatory safeguards against illegal file-sharing. It also extends copyright protection to computer programs, movies, and other audiovisual works. This law attempts to regulate cyberspace and forbids devices whose purpose is to evade digital anti-piracy tools.

The Act allows a website operator, electronic bulletin board owner, or internet service provider to avoid liability for copyright infringement if they promptly remove or block access to infringing materials after a copyright holder files a "take-down notice". When filing a take-down notice, a person must identify the infringement and declare, under penalty of perjury, that they are authorized to represent the copyright holder and have a good-faith belief that the use infringes on a copyright.

Trademark law seeks to protect the public from confusion regarding the sources of goods or services and to protect businesses from the diversion of trade through the misrepresentation or appropriation of another's goodwill. A trademark can be any word, name, symbol, device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others. For example, the Amazon logo is a trademark for the online retailer.

The Lanham Act is the federal law governing trademarks in the US. The US Patent and Trademark Office maintains a registry of trademarks. Each registration remains in force for ten years and may be renewed for another ten years. If the trademark owner continues to use the mark, trademark protection may last indefinitely.

A trademark owner may file an infringement action for unauthorized use of a trademark under the Lanham Act if they establish that the infringer used the mark in commerce without their consent and that the use was likely to cause confusion. A defendant in a trademark infringement suit may raise the defence that their use was a parody, which is allowed because it is unlikely to be confused with the marketing of the original product.

Another common trademark infringement dispute involving cyberlaw concerns domain names and cyber-squatting. Cybersquatting occurs when someone registers a domain name that would be associated with a company's trademark and then seeks to profit by selling or licensing the name to the company. In 1999, the US adopted the Anti-Cybersquatting Consumer Protection Act to prohibit cyber-squatting. The law authorizes trademark owners to obtain federal court orders transferring ownership of domain names from cyber-squatters.

Patent law grants inventors the right to exclude others from making, using, offering for sale, selling, or importing their invention. For an invention to be patented, it must be comprised of patent-eligible subject matter and adequately described.

Trade secrets are confidential business practices or information that a business owner keeps confidential to maintain an advantage over competitors. Examples include customer lists, business plans, marketing strategies, prices, costs, processes, novel software, and specific implementations of manufacturing concepts. Trade secrets are protected under state law and the Uniform Trade Secrets Act, a model statute that codifies the basic principles of common-law trade-secret protection.

Online marketing policies

The Federal Trade Commission (FTC) is the official consumer watchdog in the US, and it investigates and fines parties for using "unfair and deceptive marketing" tactics. Deceptive and unfair marketing can vary based on context, but it generally includes:

• Making the current price seem like a bargain by tagging a higher 'original price'
• Sending off unauthorised promotional texts
• Soliciting information by using tricky pop-ups
• Using billing addresses and credit cards without authorisation
• Not labelling tags for paid advertisements (#ad)
• Releasing information about a customer without their consent
• Disguising ads so that they look like standard website material
• Fooling internet users into repeated billing situations
• Attempting to prevent negative feedback, as this goes against freedom of speech
• Purchasing website reviews or making fake news websites
• Making assertions relating to health that are not backed up by scientific or medical proof
• Falsely labelling something as 'all natural'
• Describing rare results as typical results
• Making statements that are not true (lying)

Websites should aim to:

• Be transparent about endorsements, sponsorships, and partnerships
• Be clear about disclosures
• Accept liability for freelance marketers
• See crowd-sourced projects through to the end. If you abandon a project, refund any money collected
• Avoid starting a new enterprise with a different name if you have been investigated by the FTC

The FTC Act, Native Advertising Guidelines, and Intellectual Property laws also govern online marketing.

In the UK, the European E-commerce Directive was brought into law in 2002. This collection of regulations is designed specifically for companies that sell online, by text, or by email. It also applies to companies that advertise using these mediums, as well as those providing communication platforms online and storing content for customers on the Internet.

The directive outlines the marketing rules that must be adhered to and the information that clients must know about a company. One stipulation is that promotions should be recognisable and not seem like plain content. They need to reveal the business making the offer and what the offer is. Online contracts and terms and conditions should also be printable.

Data Collection and Privacy

When marketing online, it is necessary to collect consumers' contact information. The methods used to collect this information must comply with current data collection and privacy laws. A Privacy Policy should be posted on the website, and visitors should agree to it. This is commonly done via a clickwrap agreement. The Privacy Policy should spell out how the data collected from consumers will be used and the security measures in place to ensure their data is secure. To protect from liability in the case of a data breach, a Limitations of Liability clause should also be included.

Intellectual Property

It is important to ensure that none of your marketing activities infringe on the intellectual property rights of others. When marketing products or services online, trademarks and copyrights should be in place to protect your brands and logos. An intellectual property clause should be included in your Terms of Service that details IP use expectations for your trademarks and copyrights as well as those of other owners that may appear on your website.

One of the main ways marketers infringe on IP is by using protected images. There are lots of free image websites out there, or inexpensive ones for stock photography, that you should access to ensure you don’t inadvertently use copyrighted images.

Online Advertising and Marketing

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 standards apply if you sell computers, software, apps, or other products or services.

CAN-SPAM Act: A Compliance Guide for Business

If you use email in your business, you need to know about the CAN-SPAM Act. The law establishes requirements for commercial messages and gives recipients the right to have you stop emailing them. To comply with the CAN-SPAM Act, you must:

• Not use misleading or false header information
• Not use subject lines that are deceptive
• Tag any advertisement as an ad
• Provide recipients with your contact information, including location
• Allow recipients to opt out of receiving future emails
• Promptly remove recipients who opt out
• Monitor the activities of third parties conducting email marketing on your behalf

Net neutrality

The term "net neutrality" was coined by Columbia University media law professor Tim Wu in 2003 as an extension of the longstanding concept of a common carrier, which was used to describe the role of telephone systems. Net neutrality was advocated for in the 1990s by the presidential administration of Bill Clinton in the United States, with Clinton signing the Telecommunications Act of 1996, an amendment to the Communications Act of 1934, setting a worldwide example for net neutrality laws and the regulation of ISPs.

Supporters of net neutrality argue that it prevents ISPs from filtering internet content without a court order, fosters freedom of speech and democratic participation, promotes competition and innovation, prevents dubious services, and maintains the end-to-end principle. They also argue that it helps provide freedom of information exchange, promotes competition and innovation for internet services, and upholds standardization of internet data transmission, which was essential for its growth.

Opponents of net neutrality, including ISPs, computer hardware manufacturers, economists, technologists, and telecommunications equipment manufacturers, argue that net neutrality requirements would reduce their incentive to build out the internet and reduce competition in the marketplace, and may raise their operating costs, which they would have to pass along to their users.

In April 2024, the Federal Communications Commission (FCC) voted to reinstate net neutrality in the United States by reclassifying the internet under Title II of the Communications Act of 1934, meaning that it is now treated as a public utility, similar to water and electricity. This move came after net neutrality rules were repealed in 2017 during the Trump administration.

Frequently asked questions