Cyber Torts: Common Law and Statutory Restraints in the United States
| Author | Gregory C. Mosier and Tara I. Fitzgerald |
| Position | Oklahoma State University Spears School of Business Stillwater, Oklahoma 74078 |
| Pages | 17-24 |
Page 17
In the United States, one of the typical domains of states and their courts, is to make determinations under their common law that provide rules related to torts and recovery for injury to persons and property. A variety of constitutional and judicial authorities support that role. Technology and the Internet have allowed new types of interaction and transactions between individuals that are not always benign and may cause injuries giving rise to tort claims in a way not previously contemplated. Of course, the strength of the common law system is its ability to evolve and develop as society and technology changes.
Clearly, concepts embodied in local, national and international legal regimes address some of the possible transgressions that may give rise to criminal penalties and, in some cases, civil liability. These statutory, regulatory and treaty based rules generally involve, at some level, deliberations that considered the impact of technology and favored policies and often are directed at such cases when passed.
In the case of the common law, the evolution of liability concepts and determination of their applicability through analogy has created a higher degree of uncertainty. To add to this uncertainty in the United States, there are federal statutory provisions that obviate the applicability of common law torts concepts. The extent to which tort law has evolved to continue its traditional redress for individuals injured by the wrongful acts of others has been severely restricted in the case of some torts, particularly when the act is one involving third party content and service providers. As Rustad and Koenig (2005) noted, despite "rosy prediction that new torts were on the horizon to protect consumers in cyberspace. We were mistaken. Tort law has yet to expand to defend the consuming public against a wide variety of wrongdoing on the World Wide Web because of the overly broad immunity conferred on ISPs."
In the United States, federal restrictions provide immunity for many activities in the context of cyberspace. Many of these activities have been traditionally governed and adjudicated according to common law tort principles. When the cases relate to property interests, the common law is adapted. When the torts alleged relate to individual interests, federal laws and the expansive interpretation of their application have limited the evolutionary path of the common law. This paper reviews a number of state court decisions in the United States and their representation of the application of basic tort principles, first to personal interests and then to property interests involving technology enhanced activities on the Internet.
In Doe v. AOL, Inc. (2001), the State Supreme Court of Florida was called upon to provide answers to a "question of great public importance." The issue was whether or not the Communications Decency Act (CDA) had preempted certain state common law tort actions. The questions were based on a case filed by the mother of a minor child, who alleged that AOL was negligent in its oversight of its service when it failed to recognize Page 18 or take action against a subscriber who was using the service to market and distribute child pornography. Emotional injuries were suffered by the plaintiff's son when the offender used the service to lure him to participate in his activities. The trial court and intermediate court of appeals dismissed the plaintiff's action, citing prevailing federal case law under the CDA. Section 230 of that act provides:
"(c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker No 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.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) Any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
(d) Effect on other laws
(1) No effect on criminal law Nothing in this section shall be construed to impair the enforcement of section 223 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute.
(2) No effect on intellectual property law Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.
(3) State law
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."
The court rephrased the certified questions submitted to it and considered them in reverse order. It first answered the question if section 230 preempted state law negligence claims against Internet Service Providers (ISPs) as a distributors of information that violated state criminal statutes prohibiting the distribution of obscene and pornography material. Citing Zeran v. America Online, Inc. (1997), it then said if the premise of the law suit, based on negligence, was accepted, the question of whether or not the federal statute preempted the suit would be answered in the affirmative based on established case law from the federal courts.
The court determined that the CDA's application was indeed retroactive and applied to cases filed after the effective date of the statute, based on facts that had occurred before. The court found compelling language in the statute that stated, "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." Such language it determined was preemptive in nature as it referred to the filing of actions and not to a post enactment activity such as preemption or "no effect" of state law. The Florida Supreme Court affirmed the lower court's decision and held that the state law's claims for negligence were preempted by the CDA.
Three of the seven judges on the court dissented in this case. Their opinion reflects discomfort with following the line of reasoning developed in federal courts, particularly Zeran, in interpreting the CDA. The dissent noted, "it may be somewhat attractive for the majority to follow an existing published opinion from a different jurisdiction; however, I conclude that, because the analysis upon which it is based is faulty and leads to a totally unacceptable interpretation, it should not be followed." The dissent argued that the interpretation of the CDA by state courts, following Zeran and its progeny to be erroneous in light of the lack of a clear pronouncement by the United States Supreme Court. It also conflicted with what it interpreted to be the legislative history of the CDA.
The Doe dissent can be perceived as a slight from the federal government in its attempt to regulate areas of traditional state law. It continued, with some severity, noting that, "through the majority's interpretation, the so-called "Decency Act" has, contrary to well-established legal principles, been transformed from an appropriate shield into a sword of harm and extreme danger which places technology buzz words and economic considerations above the safety and general welfare of our people."
The dissent noted many concerns with the decision of the majority, including its apparent disregard of the common...
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