Biomatrix case exercises - student module  (Page 18/21)

Ethical perspective: osp responsibility

Legal responsibility: criminal

1. That the agent under investigation had a mens rea , a guilty state of mind or an intention to do wrong. Suppose, for example, that the BXM Police intended to defame Biomatrix and its top officials in order to drive down the value of its stock and to make money by short selling it. Or suppose that the two former Biomatrix employees decided to get even with their former employers. This state of mind or intention would be termed a mens rea.
2. That the agent under investigation actually committed the actus reus , the wrongful action. Again, the BXM police posted thousands of messages in Yahoo that were false and defamatory. This action constitutes the actus reus.
3. That the mens rea shaped and guided the actus reus. The messages of the BXM Police must be defamatory and they must be so intentionally. In other words, the BXM Police cannot be punished if they unintentionally published defamatory messages even if they had formed an intention to get back at Biomatrix. Their guilty mind must have informed the guilt act, guiding it and shaping it in its planning and execution. Thus, the criminal responsibility framework presupposes this connection between mens rea and actus reus in order to justify punishment. We can't punish an individual for having a guilty intention; he or she must act on it. And we can't punish those who do wrong accidentally, although we may be able to establish negligence under civil law (tort). The intention to do wrong must issue forth into an actual wrongful action in order for punishment to kick in.
4. This discussion of criminal responsibility is taken largely from Manuel Velazquez who argues that corporations are not morally responsible because they lack both mens rea and actus reus.

Legal responsibility: civil

• Responsibility under civil law requires establishing fault such as negligence, carelessness, or recklessness. (The later two faults when egregious actually provide an opportunity for criminal responsibility to spill into civil responsibility. If a negligence expands into recklessness, then it seems to be in society's interest to punish and deter it.) Yahoo may not have intended to harm Biomatrix and its top officials but they may not have taken reasonable precautions from preventing others from using their bulletin board to cause this harm. If the harm (tort) occurs because of some fault on the part of Yahoo, then those who suffer this harm have the right to receive compensation to make them whole, i.e., to restore them to the condition they were in prior to the harm.
• Analogically extending defamation law as it applies offline requires considering three possible ways that Yahoo may have been negligent. The law needs to settle on which role to ascribe to the OSP: publisher, distributor, and common carrier. their responsibility for displaying defamatory content depends on which role the law settles in on. In all three cases, responsibility follows from power and control; we are responsible for those things that fall within the scope of our power and control.
• (1) If OSPs are considered publishers, then they are responsible for the defamatory material that appears within their various forums. This is because publishers exercise editorial control over what they publish. The nature of the speech, its content, is within the scope of their power and control. They are, therefore, responsible. OSPs will dispute this. For example, the Italian court recently found Google executives guilty in abstentia for a video displayed in YouTube that showed a child with Down syndrome being abused by his classmates. The parents successfully sued Google for violating privacy by allowing the publishing of the video. Google removed it immediately upon notification. But they have been admonished by the court for allowing the video to be published in the first place. Google claims that that they do not exercise editorial control over what can be published and are only responsible for timely removal of objectionable content.
• (2) If OSPs are considered distributors, then they are responsible only for removing objectionable content promptly on notification. They do not exercise editorial control over the content distributed through their portals. Therefore, they musWhat is within the power of the OSP is to remove content quickly upon notification by users.
• (3) OSPs can also be treated as common carriers like telephone companies. In this case, they would be responsible for filtering objectionable content as it makes its way into their forums. To a certain extent, this technology exists since filtering programs are used to detect and eliminate spam. (The author also found in Yahoo user-activated filters that would remove offensive language.) But filters bring their own problems as Lawrence Lessig points out in Code . They can never be calibrated sensitively enough to prevent them from filtering out legitimate content. Again, in reference to the Italy trial, Google executives argued that holding them responsible as common carriers imposes on them the impossible task of reviewing all content before it is published. They also argue that this would have a chilling effect on the creativity and innovation engendered on the Internet.
• The law in the U.S. has generally settled on treating OSPs as distributors. So assume that Yahoo is responsible as a distributor in the Biomatrix case. (a) Are they responsible for the defamatory content displayed in the financial bulletin board? (b) If so, are they required to compensate Biomatrix for the decline in Biomatrix stock that occurred during the time these messages appeared? (c) Did Biomatrix notify Yahoo promptly of the presence of defamatory material? Or, was it that Biomatrix did not quickly discover the defamatory messages? (d) Was it Yahoo's non-responsiveness, i.e., that they failed to remove the defamatory messages promptly after notification that led to the harm? (e) Given the long period over which Biomatrix stock declined, can it be proven that the defamatory messages were the cause? Even assuming Yahoo responsibility as distributor here, there are still many factual issues that must be settled before proving that Yahoo owes damages to Biomatrix.
• This discussion of ISP responsibility has been taken from Spinello (see below). While his discussion is somewhat dated given the recent advances in content id software, it still shows how responsibility online has been structured largely on the basis of analogies with offline experiences.