Cyber Law & Islamic Ethics CICT3523 CIVIL LIABILITIES
TORTS Involves a duty one owes to another person. Differ from crime whereby tort involves private wrongs and crimes involved public wrong. The main objective is to claim compensation.
WHAT’S DIFFERENT ABOUT A TORT IN CYBERSPACE AS OPPOSED TO TORTS IN “PHYSICAL” SPACE? The answer is that nothing is new. Cyberspace is just a place of communication between the parties involved. The damage done in the physical world. E.g The doctor who uses while giving a wrong advice. The patient suffers whether the medium is , online database, or see the doctor personally.
WHAT IS DIFFERENT THEN? 1. Interactions in the digital world are so often and so anonymous, enforcement may become a more burdensome issue how to find out who caused the damage? 2. The problem to prove jurisdiction because cyberspace is borderless.
AMONG THE TORTIOUS OFFENCES RELATING TO CYBERSPACE 1. Trespass to chattel 2. Passing off 3. Negligence 4. Defamation
1. Trespass to chattel Involves intentionally direct contact with the property of another. When one obtains access to another person's computer may provide grounds for tort action. E.g in 1996 hackers successfully entered the U.S Department’s official Web site, replacing text with pornographic pictures, President Clinton’s portrait with that of Hitler’s. The action be taken under trespass.
2. PASSING OFF Someone represent someone’s else company in cyberspace. Passing off is a tortious version of trademark protection. It may be used by those who haven’t registered a trademark for their product and service. Passing off doesn’t provide as complete protection as trademark registration however at least the owner if he can prove “good will” can claim damages.
3. NEGLIGENCE The person has a duty to take care but he fails to perform that duty up to the standard of reasonable man. E.g negligently introduced the virus into the system or negligently delete the data from the database.
Negligence under the Islamic law Islamic law differentiates between intentional and unintentional acts. Al-Ahzab: 5, “But there is no blame on you if you make a mistake therein: What counts is the intention of your hearts”. Hadith sahih al-Bukhari “The rewards of deeds depends upon the intentions and every person will get the reward according to what he has intended”.
Negligence under the Islamic law However, civil liability under the Islamic law is neither “fault liability” nor “strict liability”, but may be described as “damage liability”. Thus the general principle of liability is that there is no liability without damage.
4. DEFAMATION The constitution provides us with the right of speech and expression. However, these are not entitled to absolute protection. They can be limited if they infringe or violate the rights of another. One of it is tort of defamation.
Defamation may be defined as oral or written false statements that wrongfully harm a person’s reputation. Since most material communicated on the Internet can be classified as published and has a degree of permanence, it can be classified as libel and not slander. E.g electronic communications, messages are possible to instantaneously publish and transmit to millions of other online users worldwide. The potential for harm to one’s reputation can be significant if these message contain defamatory material. Complicating the issues is the fact that online users can communicate anonymously whether in chat rooms or in newsgroup.
ELEMENTS OF PROOF REQUIRED FOR DEFAMATION 1. A false and defamatory statement must be made about another’s reputation or business 2. Publication must be made to the public. 3. The acts be done with fault or negligently. 4. The statements must result in actual or presumed damage.
LIABILITY OF ONLINE AND INTERNET SERVICE PROVIDERS FOR DEFAMATION The author of an online defamatory statement may be unidentifiable or untraceable or outside the jurisdiction or if traceable, have insufficient funds to meet the claim. The most likely candidates to be sued are the service providers. The issue is to what extent the service providers should be liable for defamatory material they pass on. Second issue is the OSP or ISP are carriers, distributors or publishers?
1. Carrier (like telephone or telegraph company) has no control over the content of what is communicated over their service. They are not liable for defamation. 2. Distributor (like bookstore owners) does not exercise the degree of control over the content. They are also not liable for defamation. 3. A publisher can be liable for defamation since they exercise a sufficient degree of editorial control over what they publish. Therefore, ISP is a carrier, distributor or publisher?
To answer this question, we look into the approaches taken by; a) United States b) United Kingdom
1) U.S In the U.S.A, the courts have defined the scope of ISP in Cubby Inc. vs CompuServe. The court in this case considered OSP and ISP as distributors, like a bookstore. Therefore, the ISP was not liable because it is very hard to monitor every single things that available on the Internet.
2) U.K No decided cases involving online defamation. The question whether the operator of an OSP or ISP should be regarded as distributor or publisher does not yet be determined by the courts. But they have the UK Defamation Act Under the Act, a person has a defense if he knows that: a) he was not the author, editor or publisher of the statement complained of, b) he took reasonable care in relation to its publication, and c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. Therefore, ISP are not liable if they can prove this defense.
ANOTHER PROBLEM: JURISDICTION The law regarding defamation differ from one state to state and country to country. In general, courts consider the impact of the statements on the plaintiff’s reputation in the community where the plaintiff resides. However, a problem is that if the plaintiff is a public figure whose fame extends domestically or internationally, whose law should be used?
SUGGESTION 1. To embark on some sort of multi- country agreement like what we have on privacy (European Directive on Privacy). 2. Some desires to keep cyberspace free from restraints on speech and expression, opting instead for self- regulation and mutual cooperation.
DEFAMATION AND ISLAM There are many distorted and biased information published about Islam and Muslims by such publications as WorldNetDaily.com, and many others on the Internet. “Fight and slay the pagans (infidels) wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem of war”. Quran, Sura 9:5 Al-Noor :23 reads as: ”Those who slander against chaste, innocent, believing women shall indeed be cursed in this world as well as the hereafter. For them shall be a grievous punishment”.
DEFAMATION AND ISLAM Surah al-Hujurat, 12 “… And spy not, neither backbite one another. Would one of you like to eat the flesh of his dead brother?” Surah al-Hujurat, 11 “o you who believe! Let not some men among you laugh at others …. Nor defame nor be sarcastic to each other.”
Disseminate defamatory material A person is responsible for disseminating defamatory material even though he may not intend to defame. The Syariah puts upon him duty to ascertain the truth, especially if it emanates from unknown persons. Surah Al-Isra: 36, “And pursue not that of which you have no knowledge”. Surah Al-Hujurat: 6, “ If a wicked person comes to you with any news, ascertain the truth, lest you harm people unwittingly, and afterwards become full repentance for what you have done.”
The proper conduct advocated by the syari’ah when one receives defamatory news of another is that, unless verified, one should not disseminate it. Even if it aroused one’s suspicion, without certain knowledge, do not give it currency by expressing it to others. Although one may think it a small matter to speak lightly of something, which blasts a person’s character or reputation, the syari’ah treats it seriously. This will also applicable in online defamation.