ITMM 4405 Legal Implications of ECommerce

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ITMM 4405 -- Legal Implications of E-Commerce

• Torts, Part I

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What is a tort?

• A tort is a noncontractual interaction in which
  one party wrongfully harms another party.
• A tort usually results in a civil action for
  damages.
• There may also be separate criminal liability.

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Three categories of torts

• Intentional -- requires intent by the defendant
• Negligence -- not based on intent, but rather
  based upon the breach of a duty owed to the
  plaintiff
• Strict Liability -- liability can occur simply as
  a result of doing an act

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Intentional Torts

• An intentional tort occurs if there is intent by
  the defendant to engage in the act that results
  in an injury.
• The defendant does not, however, have to intend
  the resulting harm.

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Intentional Infliction of Emotional Distress

• It is a tort to intentionally inflict emotional
  distress upon someone.
• This is a catch-all claim in many personal
  injury suits.
• Increasingly being used in cyberstalking cases.

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Intentional Infliction of Emotional Distress

• Elements
• Conduct by the defendant that
• Is so extreme and outrageous that
• It results in severe emotional distress
• To another person, the plaintiff.

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Invasion of Privacy

• Tort law protects against an invasion of privacy
  by private individuals.
• The Fourth Amendment of the U.S. Constitution
  protects against intrusions of privacy by the
  Government.
• Four separate torts
• Unauthorized commercial use of someones name or
  likeness
• Unauthorized intrusion into a persons solitude
• False light
• Public revelation of private facts.

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Commercial Use of Someones Name or Likeness
Without Permission

• This tort is classified with the other invasion
  of privacy torts, but is really more of a taking
  of property owned by another without
  compensation.
• Courts are more frequently ruling that
  celebrities have a right in their name and
  likeness. This right may even persist after
  death.

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Unauthorized Intrusion into a Persons Solitude

• Occurs through the unauthorized searching of
  someones premises, belongings, by bugging or
  wire-tapping, through the unauthorized intrusion
  into financial records, etc.
• There must be a reasonable expectation of
  privacy.
• Public figures have little expectation of
  privacy, therefore, it have limited protection
  here.

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False Light

• Elements
• Public revelation of information that
• Places the plaintiff in a false light
• Examples
• Attributing to a person ideas not held by that
  person
• Attributing to a person actions not taken by that
  person.

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Public Revelation of Private Facts

• Elements
• Public revelation of private facts
• About the plaintiff
• That a reasonable person would find repugnant.
• Examples
• Public revelation of alcohol or drug abuse
• Disclosure of private information regarding a
  persons sex life

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Privacy and Monitoring of Employees

• In general, it is lawful to monitor employees
  acts through the use of cameras, or software.
• No expectation of privacy in e-mail messages sent
  or received through your work account.
• But, employees should be notified that they will
  be monitored to
• Curb objectionable behavior and
• To reduce any expectation of privacy an employee
  may have.
• But, there are limits. (e.g. monitoring female
  employees dressing room, etc.)

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Defamation

• First Amendment to the Constitution gives us the
  freedom of speech.
• But, this does not extend to
• making untrue statements
• Either written or spoken
• to third parties
• that are harmful to an individuals reputation.

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Two types of Defamation

• Slander through spoken words
• Libel through written communication

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Slander per se (as a matter of law)

• Certain kinds of statements are considered
  slanderous without proof of harm to the
  plaintiffs reputation
• Examples
• Statements that a person has a communicable
  sexual disease
• That a person has committed improprieties while
  engaging in a profession or trade
• That a person has committed a serious crime or
  been imprisoned for such a crime
• A statement that an unmarried woman is unchaste.
• Due to the nature of these statements, it is
  presumed that there is harm to the plaintiffs
  reputation

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Damages in Defamation Cases

• Must show actual economic losses in slander cases
  to collect damages.
• But, you do not need to show actual damages in
  libel cases to collect monetary damages.
• Courts appear to be holding Internet
  conversations (e.g. chat rooms, etc.) as libel.

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Defenses to Defamation

• Truth -- truth is an absolute defense.
• Absolute Privilege -- some statements are subject
  to an absolute privilege
• Statements made in court during a trial
• Statements made during legislative debates
• Qualified Privilege
• Statements made in good faith, with absence of
  malice, and communicated only to those who have a
  legitimate reason for receiving the information
  may be privileged.
• E.g. letters of recommendation for jobs,
  references for jobs, etc.

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Public Figures

• To recover in a defamation suit, a public figure
  must also show that the defendant knew a
  published statement was false or exhibited a
  reckless disregard for the truth.
• Called actual malice.

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Tort Damages

• Compensatory -- damage award designed to
  compensate the plaintiff for the harm they have
  suffered.
• Punitive -- damage award designed to punish the
  defendant and to provide disincentive for similar
  conduct in the future
• Injunctions -- order prohibiting defendant from
  continuing harmful activity