MOUNT KENYA UNIVERSITY
SCHOOL OF LAW
PARKLANDS
COURSE : IT AND THE LAW
COURSE CODE : BLW 3212
CLASS : GROUP B
COURSE CO-ORDINATOR : CONSOLATA M. MAITHA
GROUP NO. 6
NAME REGISTRATION NO.
1. BONIFACE MAKAU BLAW/56331/2016
2. OKISAI IVAN BLAW/54931/2016
3. MARYANNE KIHIKA BLAW/55374/2016
4. THORNE WEKESA BLAW/54604/2016
5. YVONNE MUTINDI BLAW/54272/2016
6. SHADRACH OUMA BLAW/55838/2016
7. PENNINAH ALINGO BLAW/55654/2016
8. TIMOTHY OKETCH BLAW/55173/2016
9. DENNIS MWIRIGI BLAW/54850/2016
QUESTION
GENERAL TORTS IN RELATION TO PERSONAL DAMAGE.
INTRODUCTION
A tort is a negligent or intentional act committed by someone that results in injury
to another person or their property. It may be defined as an act or omission that gives
rise to harm to another individual and amounts to a civil wrong for which a court
may impose liability.
Within the realm of Information Technology, torts committed by means or some
sought of medium within information technology are referred to as cyber torts.
Therefore cyber torts are simply torts committed over cyberspace or the internet. A
cyber tort falls in the realm of using the internet or computers to commit a negligent
or intentional civil wrong against others. Cyber torts are an important topic for the
fact that it is a quickly emerging issue and such cases are rapidly on the rise.
Some examples of cyber torts include trespass to chattels, conversion and cyber
defamation. Trespass to chattels includes all those spywares, spam emails and
scrappers you see some of the time. Conversion involves negligent or intentional
stealing of other peoples domain names online. Cyber defamation also can happen a
lot on social networks and forums.
As you can see this types of cyber torts are serious issues that happen probably every
day that can result in serious harm to the public including us.
DEFAMATION
The fundamental basis of defamation liability is the publication of untrue
information. Liability is based on damage to the reputation of the person referred to
in the information, and that reputation cannot be damaged unless the information is
disseminated to others than the author1.
The general legal definition is “the issuance of a false statement about another
person, which causes harm to the person or their reputation.” Libel is the most
common form of defamation concerned with Information Technology and
cyberspace for the reason that the internet more or less has the same protection as
print or published media.
1
Chris Reed “ Internet Law” 2nd Edition, 112
Along with the core elements of defamation, the burden of proof is placed on the
plaintiff.
Cyber defamation is considered to be more harmful than libel and slander of the
physical world or offline. The effects of online defamation could be greatly worse
than that made offline due to the global nature of the internet and the fact that
statements made would be accessed by almost anyone and everyone.
In addition, prosecution may become a challenge due to the sometimes anonymous
nature of online interactions. It therefore becomes difficult to trace the author or
origin of a statement made depending on the medium.
In the case of Blumenthal v Drudge2, the defendant published a gossip column
known as the Drudge Report Online (AOL). The defendant is an internet service
provider that also maintained its own website who agreed with Drudge that AOL
would pay Drudge £300 a month so that it could post Drudge’s column on its
website. The Drudge Report wrote a column. Posted by AOL, claiming that the
plaintiff who had been hired as the president’s assistant had assaulted his wife, also
a White House employee.
The plaintiff brought a defamation suit against the defendant. In response, Drudge
retracted the story and apologized. AOL moved for summary judgment arguing not
to be held liable. The issue was whether an internet service provider was immune
from liability in a defamatory suit when the alleged defamatory material was created
by an independent third party and only posted by the provider.
The court in its determination held that an internet service provider is immune from
liability in a defamation claim when the alleged defamatory material was created by
an independent third party and merely posted by the provider. The law relied upon
here was section 230 of the Communications Decency Act (CDA) 1996, which
stated that “No provider or user of an interactive computer service shall be treated
as the publisher of speaker of any information provided by another information
content provider.” AOL did not participate in creating the story in question and,
therefore, under the CDA, cannot be liable as a publisher or speaker of the story. For
this reason Drudge was found liable for defamation and not AOL.
2
992 F. Supp. 44 (D.D.C 1998)
INTERNATIONAL PERSPECTIVE
Defamation laws differ widely. For example, English law imposes liability
regardless of whether the publisher of a statement knew or ought to have known it
was defamatory3 whereas under Finnish law a distinction is made between
intentional or negligent defamation4. Under US law a statement referring to a public
figure will only be defamatory if malice can be proved on the part of the maker of
the statement5.
Whether a defendant has an obligation to identify anonymous statements which it
has made available is also a policy question to which national laws may give
different answers6. These national differences make it difficult for an internet
publisher to assess in advance whether material is likely to give rise to liability.
CONVERSION
In law, the tort of conversion is defined as “the unlawful turning and applying of
personal goods of an individual to the use of the taker, or any other person besides
the owner or the unlawful destruction or altering of its nature.”
Circumstances that would warrant a cause of action for conversion are where the
plaintiff has legal ownership or right of possession at the time of conversion. The
defendants conversion is by a wrongful act or disposition of the plaintiff property
rights and there is damage resulting.
In the case of Kremen v Cohen7, the defendant, a formerly convicted conman wrote
a letter to Network Solutions, an entity responsible for registration of domains,
purporting to be the Online Classifieds, a business owned by the defendant and
registered in his name. In this letter, Cohen claimed that Online Classified had been
forced to terminate Kremen’s contract with them and wished to abandon the domain
name “sex.com” which had been registered by the plaintiff.
Network Solutions therefore went ahead and transferred the domain name to Cohen
who in turn transformed it into a mega pornography empire. In the suit at first
instance, the plaintiff’s claim under the tort of conversion failed. The court held that
3
E Hulton & Co v Jones [1910] AC 20
4
Finnish Penal Code
5
New York Times Co v Sullivian 376 US 254 (1964)
6
Totalise plc v Motley Fool Ltd and Interactive Investor Ltd 2001 WL 1479825, [2002] EMLR 20
7
337 F. 3d 1024
the claim could not succeed as the tort of conversion was concerned with tangibles
and the subject matter herein, an internet domain name, was in no way tangible.
The plaintiff appealed the ruling.
In the appeal, the court stated that existence of a property was a crucial ingredient
for a claim of conversion to stand, they therefore applied three tests. “ First, there
must be an interest capable of precise definition; second, it must be capable of
exclusive possession or control; and third, the putative owner must have established
a legitimate claim of exclusivity.”
Domain names were found to satisfy these test. The plaintiff therefore had an
intangible property right in his domain name for reasons that a domain registrant
decides where on the internet those who invoke that name are sent; ownership is
exclusive as it is only the registrant who makes that decision; and the registration of
the domain name informs others that it expressly belongs to the registrant. The
appeal succeeded.
TRESPASS
Legally, trespass to chattels is defined as the interference with a chattel in the
possession of another and which interference results in:
a) Disposition of chattel.
b) Deprivation of the use of the chattel for a long period of time.
c) Impairment of the condition, quality and usefulness of the chattel.
d) Harm to the person of the possessor or persons or things which he has legally
protected interest.
Initially the tort of trespass to chattels was with regard to tangible objects but since
1990 it has now been expounded to cover the realm of cyberspace and information
technology. The reason for this is to help protect internet users from some of the
major problems due to the growth of internet including spam emails, spider and bots
and spywares.
An example of one of the first cases that extended trespass to chattels to cyberspace
was CompuServe, Inc. v Cyber Promotions Inc8. in this case the defendant, Cyber
Promotions business was to sell unsolicited email advertisements to as many users
and the internet as possible. It turns out that most of the users they do send their
8
962 F. Supp. 1015, 1997 U.S. Dist. LEXIS 1997, 25 Media L. Rep. 1545
emails to happen to subscribers of CompuServe, the plaintiff, because Cyber
Promotions was using CompuServe’s computer system.
Obviously the plaintiff did not like this because the defendant’s emails were making
their subscribers angry as well as slowing down their system due to the mass of
unsolicited email they were sending. The plaintiff warned the defendant many times
to stop emailing their clients, however after the defendants kept emailing their users,
the plaintiff decided to sustain an action for trespass to chattels. The plaintiff claimed
that they suffered injuries other than that just the physical injury of the defendant’s
emails on their system including loss of subscribers. In conclusion, the court decided
that preliminary injunction that the plaintiff requested was appropriate due to the
plaintiff’s ability to show that the defendant trespassed into their computer system,
harmed their business reputation and goodwill.
EMAIL/ TEXT HARASSMENT
This is the abusive use of the internet to send unwanted, excessive and inordinate
amounts of emails, texts, whatsapps etc. to another. This type of online activity can
be compared to harassment through letters.
CYBER-STALKING
This tort involves following an individual’s movements across the internet by
posting messages usually directed to the individual (particularly threatening or
obscene) on websites frequented by the individual, intentionally entering and posting
on the chat-rooms or internet forums frequented by the individual and constantly
overwhelming the individual with emails, texts, whatsapp etc.
Section 16 provides that a person who, individually or with other persons, willfully
and repeatedly communicates, either directly or indirectly, with another person
known to that person, commits an offence, if they know or ought to know or ought
to know that their conduct is likely to cause those persons apprehension or fear of
violence to them or damage or loss on that persons’ property9.
ONLINE IMPERSONATION
This tort occurs when an individual, without consent, uses the name or persona of
another individual online with the intent to threaten, harm, intimidate or defraud any
person.
9
Computer and Cyber Crimes Act
UNAUTHORIZED CONTROL/ACCESS OVER COMPUTER SYSTEM
This activity is commonly referred to as hacking. It refers to the unauthorized
intrusion into a computer or a network. The person engaged in hacking activities is
known as a hacker.
LEGISLATIONS APPLICABLE
Penal Code Cap 63
o Section 124 provides for liability for defamation.
Computer and Cyber Crime Act
o Section 27 provides for cyber harassment
CONCLUSION
To date cyber torts remain elusive from legal sanctions because unlike conventional
torts there is no violation committed face to face against another. There is no literal
damage to physical property nor is there physical bodily harm. Due to the fact that
it is quite a challenge for persons to obtain any form of criminal conviction against
another for a cyber tort, persons who have been victims of a cyber tort can seek
redress in the form of a civil suit.
