Jonathan Bick New Jersey Law JournalFebruary 29, 2012
The economic difficulty of pursuing individuals for bad acts has led injured parties to seek legal remedies from the companies that facilitate the platform upon which the bad acts occur. In the past, internet facilitators could avoid contributory and vicarious liability by claiming users’ bad acts were beyond the facilitator’s ken and control. Now, widely available, low cost e-commerce technology diminishes the viability of said defenses.
Previously, passive internet service facilitators successfully argued that they do not “collaborate” with internet users to undertake bad acts because they were either unaware of the bad acts or could not act to prevent such bad acts in a timely fashion. Advances in internet technology, however, have increased the internet facilitator’s capacity for ameliorating internet bad acts automatically. Failure to employ such technology may result in an increase in the facilitator’s liability for not preventing bad acts on the internet.
Internet facilitators include service providers, hosting services, and social network sites, to name a few. These internet service suppliers allow email, instant messaging, peer-to-peer communications, blogs, broad internet access, chat rooms, intranets, interactive websites, and other electronic communications. They also allow various goods and services transactions.
These transactions may result in a myriad of bad internet acts, ranging from defamation, copyright infringement, failure to protect trade secrets, harassment (including hostile work-environment issues), to criminal accountability and loss of attorney-client privilege.
The nature and extent of internet bad acts is exacerbated by the fact that internet sites are accessible beyond national borders, and no international code of internet behavior exists. Additionally, user-generated content may be a substantial portion of an internet facilitator’s site content and the international legal community has yet to standardize intellectual property rights; international intellectual property standards are governed by multilateral treaties.