CNN Interactive on e-mail privacy

[Tom Stanton]

Just appeared today:

AP) -- When the Founding Fathers wrote the First Amendment protecting
                        freedom of the press, they never imagined millions
of Americans would
                        someday have their own version of one sitting in
their back rooms. 

                        But with the advent of the World Wide Web, that's
exactly what has
                        happened. And from this revolution has emerged a
new legal quandary:
                        Just what standards are private individuals to be
held to when it comes to
                        what they "publish" on the millions of Web pages
and other online forums
                        that serve as the world's soapbox? 

                        To a great extent, the answer thus far is this: No
one knows. With the Web
                        revolution less than 3 years old, a body of case
law hasn't yet been built
                        up. But lawyers who study online issues do have
some observations --
                        and advice. 

                        When slander becomes libel 

                        First off, they note, the line between slander,
once the realm of individuals,
                        and libel, the bane of publishers, has been
blurred. It used to be that
                        spreading malicious gossip about someone down at
the barbershop
                        could lead to charges of slander. But slander, by
definition spoken, was
                        hard to prove and generally didn't reach enough
people to do any major
                        harm. 

                        Post that same information where it can be read by
millions online,
                        however, and you've suddenly entered the realm of
libel -- governed by
                        stricter laws originally written to cover print
publications. 

                        "Let's face it," says Mark Rasch, director of
information security law and
                        policy at the Center for Information Protection at
Science Applications
                        International Corp. in McLean, Virginia. "If I were
to print up a handbill
                        saying bad things about my neighbor that were
false, at most I could
                        distribute a couple of hundred of them. With the
Web, I can now damage
                        his reputation worldwide." 

                        The law is clear: Libel consists of publishing a
false and defamatory
                        statement about an identifiable person, causing
injury to the subject's
                        reputation. Often tied to it is the legal notion of
defamation, defined as that
                        which exposes a person to hatred, ridicule or
contempt, causing them to
                        be shunned or injuring their business or calling. 

                        Truth is always a defense against libel, so if your
Web page says
                        someone has two heads and they do, you're fine. But
say they're a
                        murderer and you can expect someone to come asking
for some proof --
                        and possibly a bill for damages if you don't have
any. 

                        Privacy issues 

                        Then, there's invasion of privacy. It's one thing
to pass along a juicy bit of
                        gossip to a friend. It's quite another to post it
to the Web. 

                        "Let's say, for instance, you disclose some private
fact about somebody --
                        say, their medical records. Or you snuck into their
house and took a nudie
                        photo of them and put it up on the Net. That would
be a no-no under civil
                        law and they could sue for damages," says David
Banisar, staff counsel
                        for the Electronic Privacy Information Center in
Washington, D.C. 

                        Although few of these cases have actually gone to
court, lawyers often are
                        called in when things get ugly. 

                        "I know of a few cases where the ex-husband and
ex-wife have gone after
                        each other on the Net," Banisar says. "In one
instance, the ex-wife put up
                        a diatribe page on what a scumbag he was and how he
wasn't paying his
                        child support -- and gave out his phone number so
suitably angry women
                        could take it up with him." 

                        Remember, too, that the Internet's reach magnifies
everything in the eyes
                        of the law. 

                        E-mail can make it a federal issue 

                        Shouting "You jerk, I'm gonna belt you one!" at a
careless driver who runs
                        over your mailbox won't get you into trouble. But
posting the threat on the
                        Internet is dangerous. It's all a question of
reach: Anything done over a
                        telecommunications device is automatically an
interstate communication.

                        "This suddenly makes it a federal issue if you
e-mail," Banisar warns. 

                        State statutes vary, but when federal laws come
into effect, any
                        communication containing a threat to kidnap or
injure a person carries
                        with it the possibility of imprisonment up to five
years or a fine of up to
                        $1,000. 

                        And an entirely different level of concern pops up
when the object of the
                        threat is an elected official. Like the "no jokes"
signs posted by airport
                        metal detectors, the FBI has no sense of humor when
it comes to
                        threatening officeholders. 

                        "We can't forget all those idiots arrested for
sending threats to the
                        president. So don't send threats to the president
over e-mail. It's a federal
                        crime," Banisar says. 

                        Fraud is another sticking point. It's illegal
everywhere, of course. But the
                        Federal Trade Commission has taken an especially
hard line against
                        fraud on the Net. Send a snail-mail chain letter
asking for money and you
                        might get a call from postal authorities. Try it on
the Web, however, and
                        you'll be investigated by the FTC forces who track
online scammers. 

                        The wrath of large corporations 

                        But in the end, the biggest vulnerability of any
self-publisher on the Web is
                        probably the wrath of large corporations. 

                        You can say their logos are ugly and their
presidents are jerks and they
                        don't flinch. But try using any variety of a
heavily trademarked name or
                        image on your site and watch the injunctions flow. 

                        Generally speaking, it's other businesses who get
into trouble. But, once
                        in a while, an individual will set out to make a
point -- and get a legally
                        phrased e-mail in response. Several cases have
resulted in Web sites'
                        being taken down, including individuals who posted
statements against
                        Kmart and McDonald's. 

                        Overall, remember that putting words or pictures up
on your Web page is
                        just like publishing them in the newspaper. 

                        Use Rasch's simple test: "What you should avoid
putting on the Web is
                        the same stuff you'd avoid putting on leaflets and
handing out on the
                        street."