Recently we brought you a story about the possible consequences of what you say / post on the Internet.  It’s a tale we’ve actually discussed time and again; a series of cautionary tales and a mantra I’m sure many parents become broken records telling their kids.  Even Disney’s Phineas and Ferb made a really good PSA “Rules of the Cyberspace Road” where Ferb knowledgeably tells kids, “The Internet is forever.” No matter how hard you try you just can’t make it clearer than that.  Ask any celebrity who has tried to take back a Tweet, they just don’t go away.

Screenshot from Phineas & Ferb Public Service Announcement – Disney Channel

There are so many stories of what happens online affecting people IRL, but still so many act as though what happens on the Internet stays there.  Just to highlight a few:

Trouble Pursues Ashley Madison Users

Cyber Bullying and the Death of Zoe Johnson

Craigslist Seller Beware!

Teens Exchanging Topless Photos Like Playing Cards

Gangs responsible for Craigslist Robberies

His Online Persona Was a Girl Named Jessica

10-Year Old Girl Targeted Online By Pedophiles

Subway Spokesman Jared Fogle’s Confessions

And our latest blog which has stirred all the attention – A Tale of the Internet and Bad Decisions.

The real life implications of what happens online are endless and sadly some like Hope Witsell never recover from what happens on the Internet.  Hope was a young lady whose story we brought you last February; Hope took her own life after a picture she had “sexted” was passed around school.  Our hearts break for her and her family, what more could have been done to help her understand the consequences of what you do online?

Education is one of the keys, what you say online matters and can have serious consequences.  Listed above are a variety of criminal activities, jurisdiction would determine the exact crime, but generally there is cyber bullying, stalking, fraud, robbery, sex crimes, extortion, production and distribution of child pornography.

When looking at A Tale of the Internet and Bad Decisions we use the Free Speech test found at CriminalDefense Lawyer by Nolo, this page specifies Michigan, but as we have no context for where the mother and baby are located so this works as a good example.

Your right to free speech is protected under the 1st Amendment of the United States Constitution, however you must understand that this is a limited right. Speech that would pose a serious imminent threat to people or property may be legally limited by the state.

When it comes to bullying, you are not allowed to utter threats or engage in other abusive behaviors (conduct is also considered “speech” in this context) that pose an imminent threat to someone else. For example, threats to use a weapon are limited speech when the victim knows the bully actually has such a weapon and is nearby enough to make good on the threat.

But the line between a legitimate expression of opinion and seriously threatening speech is not always as clear and easy to draw as in these examples. For this reason, it is worth exploring a free speech defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm.

So here’s the question were the words posted to Facebook with the picture of the mother and child an imminent threat? “Would you mind if I post this picture of your baby on a pedophile’s site?” followed by, “How about this one? I can link them to your profile too!”  Would a reasonable person fear a real threat of harm and how do you define “nearby” in cyber space?

New York gets more specific on Cyber Bullying, included under the category of penal code 240.30 Aggravated Harassment in the second degree:

1. With the intent to harass another person, the actor either:

(a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household;

In the shoes of that Mom would you reasonably fear for your child’s personal safety?

Beyond the question of Cyber Bullying we find numerous questions about images and copyright on the Internet.  Bitlaw.com has an excellent section on the Fair Use Doctrine.  There are four factors, under the Copyright Act, used in determining whether use of a specific item would be considered “fair use”.

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. that nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for the value of the copyrighted work.

Important in this discussion is what are protected works vs unprotected works.  From Bitlaw.Com, “To be protected by copyright, a work must contain at least a minimum amount of authorship in the form of original expression.”  Original expression typically being discussed would be novels, songs, movies, other video productions, and works of art, all of which would be greatly affected by the fourth consideration above. In the question of “fair use” the Supreme Court has stated the fourth consideration the most important consideration in copyright infringement.

So now that we have an idea what constitutes a protected work and know that the affect on value is the top consideration, it is also important to understand how the first item, purpose and character of the use, affects the question of copyright.  Generally reproduction for purposes such as criticism, comment, news reporting, teaching, and research are not copyright infringements. This has been taken to cover most blogs and personal websites, however item 4 would have to be considered in relation to personal websites where there is financial gain from the copywritten work.

Finally comes the question of defamation.  So what constitutes online defamation?  Defamation is generally defined as a false, published statement that is injurious to the plaintiff’s reputation. When a statement of fact is made and it’s true then there is no claim to defamation.  A good example would be a Yelp review, a customer posts a review of your restaurant claiming there was an infestation in the kitchen, so you sue them for defamation. This is where it gets tricky, it’s civil not criminal so the user does not have to prove there was an infestation, instead you have to prove there was no infestation and therefore that the statement was false.

Next you find the question of fact vs opinion; opinions are privileged under the law.  A fact is considered a statement that can be proven true or false. An opinion is a matter of belief that cannot be proven one way or the other. For example, “John is a thief.” can be proven false by showing that John has never stolen anything.  In contrast “John is a complete idiot.” is an opinion or “a pure opinion” as the meaning of idiot is subjective and one person’s idiot is not necessarily the next person’s idiot. Take a look a 19th century census records to get a hint at the fluid definition of the term idiot.

Defamation also does not apply in the case of a quote of one’s own words, even when you don’t like the opinion based on those words. Take the case of Lena Dunham’s book, Not That Kind of Girl, where at least one “cease and desist” letter was received by a blogger / news outlet after they quoted portions of Ms. Dunham’s book and shared an opinion relating to those quotes.

The Internet is a complex landscape, made all the more tricky when you don’t stop to consider the consequences of your words. As much as we might all want to over complicate the issues at hand, it really is as simple as what Phineas & Ferb say in the PSA, “The Internet is forever.” and “If you wouldn’t do (say) it in person your shouldn’t do (say) it online!”

#ThinkBeforeYouPost

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