Analysis of Cyber Law - Case Study Example

Introduction There are a number of issues that need to be addressed in this fact pattern. The first is that Naja apparently was using employer surveillance of his employees, and an analysis of whether or not this is legal is the first issue. The second issue is regarding Sarah, who wants to obtain papers regarding the surveillance, and there needs to be an analysis of whether or not Naja has to give Sarah this information. Also, Sarah could possibly be convicted for viewing the images on the Internet, which involve sadomasochism and cartoon children. So, an analysis on whether Sarah could be convicted for these offenses is another issue. The final issue is regarding Debbie, and whether or not she is entitled to compensation for receiving an e-mail from Poshpaws. Therefore, an analysis of all of the above will begin below, starting with the legality of Naj’s actions and whether or not he needs to give Sarah the information she is asking for. Advise Naja of the legality of his actions, and whether he needs to give Sarah the information she is asking for. One of the issues in this question deals with Sarah’s right to privacy. The advent of new communication technologies including the distribution of personal information; the acceleration of the speed of communication through e-mail, IM, social networking and the like; and the ability of employers to electronically monitor employees has made this a hot-button issue.1 As employers cannot reasonably take the Internet and e-mail away from their employees without hurting the companys efficiency, there must be a balance between the need for employers to provide the Internet for business-related functions and reasonable personal use, and the employees tendency to abuse their privilege. Therefore, employers increasingly turn to tools such as monitoring employee e-mail and Internet usage, and disciplining employees who abuse the privilege.2 Employers typically do this with software that reads, intercepts and monitors employees electronic e-mail and Internet usage, much to the consternation of many employees.3 At present, “employers can lawfully intercept, search and read any messages stored in workplace computers because courts have ruled that employees have no expectation of privacy in workplace electronic communications.”4 As employee abuse of e-mail and Internet privileges can have severe consequences - in addition to lost productivity, such abuses also open the employer up to security breaches, viruses and hacking, not to mention that employees commit crimes against their employers more than third parties5 - there is a definite need for employers to subject their employees to surveillance. Then there is the issue of “cyberslacking,” which is just like it sounds – employees abusing their privilege and taking away valuable company time with their personal on-line activities, which leads to loss of productivity and theft of company resources.6 However, employees have rights as well, and there are a number of different UK cases and statutes that are implicated in employee surveillance. One such is the Human Rights Act 1998, which states in Article 8 that “everyone has a right to respect for his private…correspondence.”7 Courts have interpreted this particular Act in a variety of ways that would be pertinent to the question of employee surveillance. For instance, the court in Halford v. UK [1997] I.R.L.R. 471 (1997). This court found that intercepting phone calls made from an employee on business premises was a breach of the employee’s privacy.8 This decision was upheld in Valenzuela Contreras v. Spain (1998) 28 E.H.R.R. 4839 and Douglas v. Hello Ltd. [2001] QB 96710. Other decisions pertinent was the decision in Niemitz v. Germany (1992) 16 E.H.H.R.R. 97, in which the search of a lawyer’s office invaded his private life.11 However, the right to privacy is not absolute – if the employer has a legitimate concern that is being furthered by the seizure, which a surveillance would be considered to be, then the employer would be held to be within his or her rights to the surveillance. For instance, in MS v. Sweden(1999) 28 E.H.R.R. 313 ECHR, an employee complained that the release of her medical data was provided to her employer, which led to her dismissal. However, the court ruled that that disclosure was legitimate and necessary to a democratic society.12 In Friedl v. Austria (1996) 21 E.H.R.R. 83, the issue was whether the state could photograph demonstrators, and the court answered that this was legitimate, because it furthered an important aim, which is prevention of crime.13 Leander v. Sweden (1987) 9 E.H.H.R. 433 ECHR is a similar case that involved security concerns. In this case, the plaintiff was refused employment because of information in his police file, but the court ruled that this was legitimate because it furthered the legitimate need for security.14 In applying the above principles to the case at hand, it seems that Sarah might not have much of a case. True, she has a right to privacy, as evidenced by the Human Rights Act 1998 and the case law the interprets it. However, her right to privacy is not absolute, and if the employer can show that the surveillance was used for a legitimate purpose, then the balance would tip in favor of the employer. In this case, the employer can state that the surveillance was used for the legitimate purpose of deterring employee theft, and the theft is, in this case, the theft of time, in that, if employees spend hours surfing the internet, then bill their employer for those hours, that is tantamount to stealing. And, it turned out that Sarah was abusing her internet privilege, so deterring actions like Sarah’s would be another legitimate purpose of the surveillance. Therefore, Sarah would probably not have a cause of action for breach of privacy, and Naj’s action in surveillance of the employees would be probably deemed to be legal. Of course, Naj’s case would be helped even more if he had a clear policy regarding on-line monitoring, one in which Sarah understood and was presented to her in such a way that she would have no doubt as to what is acceptable and unacceptable, according to the guidelines described above. As for whether Naj must turn over the data collection to Sarah, that is another question that will be touched upon briefly. The question turns on who owns the data. Some guidance can be had in examining the Data Protection Act 199815, which puts limits on data that can be collected and the processing of personal information. Section 7 states that, with regards to the individual whose data is being collected, that person is entitled to know the nature of the data collected, for whom it was collected, and why the data was collected, but it does not state that the person is entitled to own this information. In this case, Sarah is essentially asking to own the information that was compiled about her, and nothing in the Data Protection Act 1998 would entitle her to this, so Naj may not have to turn the information over to her.16 As to whether Naj is within the bounds of legality in his actions regarding Sarah, he definitely would be, as he has the right to monitor, even if it is balanced with the employees right to privacy. Advise Sarah the Likelihood of Conviction Under the Two Offences She Has Been Charged With Sarah has been charged with violating both the Criminal Justice and Immigration Act 2008 and the Coroners and Justice Act 2009. The viewing of the cartoon girl having sex would be a possible violation of the Coroners and Justice Act 2009, while the viewing of the naked men beating one another with leather whips would be a possible violation of the Criminal Justice and Immigration Act 2008. The first offence that will be dealt with would be the possible violation of the Criminal Justice and Immigration Act 2008. Obviously, if Sarah was viewing an actual child having sex, it would be a clear violation of this act, which states that “it is an offence for a person to be in possession of a prohibited image of a child” .17 It goes on to describe a “prohibited image” as “pornographic”18, or “grossly offensive, degrading or otherwise of an obscene character.”19 This is the starting line of the analysis, because child pornography is obviously prohibited by this Act. However, the image was not of a child, per se, but of a cartoon child having sex. Therefore, one has to go a little deeper in the analysis to determine if this would also be a violation of the Corners and Justice Act. The starting point in the analysis would be the case of McEwen v. Simmons and Anor [2008] NSWSC 129220, which was a New South Wales Supreme Court decision in 2008 that concerned a conviction of child pornography on the basis of possession of pornography involving the popular Simpsons characters. In this case, the plaintiff was in possession of material depicting the Simpsons characters, particularly the children, in sexual positions and doing sexual acts. The question before the court was whether these cartoon characters would be considered a “person” for the purposes of Crimes Act. The court turned to the case of Holland v. Queen (2005) 154 A Crim R 376, which is a case where the appellant was convicted of possession of a book that dealt with the relationship between a 35 year old man and a boy of 14. In that case, the decision was that “the word peson includes a person who plays a part in a drama or a character in a play or story. It is clear that the word extends to real, imaginary and fictitious persons.”21 Another case cited by the court was R v. Sharpe [2001] 1 SCR 45, which is a Canadian Supreme Court case.22 In this case, the question was whether the ban on child pornography in general was justified constitutionally or was an unreasonable intrusion of the right to free expression. In this case, the Canadian Supreme Court decided that the risk of harm is the same in possessing child pornography that involved actual children as the risk of possessing child pornography involving images or cartoon children. Of course, in the case at bar, the images are not to be mistaken for that of real children, but the rationale would be the same. Returning to the case of McEwen, the court examined the evidence, which, as stated above, regarded the possession of pornography involving the Simpsons cartoon characters. Of course, the Simpsons characters, like the Japanese anime characters, would not be mistaken for real children. However, the McEwen court, like the Sharpe court, looked not to whether or not actual children are involved in the act, or even if the drawings could be mistaken for actual children, but, rather, what the risk of harm was in possessing these images. The McEwen court found, like the Sharpe court in Canada, that cartoon drawings can constitute a person for the purposes of child pornography statutes. The Supreme Courts in both Canada and New South Wales decided that cartoon images can constitute children. What does the UK state about this matter? Some guidance can be found in the Coroners and Justice Act 2009 § 65(6)(b). In this statute, the meaning of image is defined as “where an image shows a person the image is to be treated as an image of a child if the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.”23 Therefore, according to this statute, as long as the predominant impression conveyed is that the person shown is a child, then that image could be considered to be that of a child for the purposes of this Act. While this seems kind of ambiguous when one regards cartoon characters – one can argue that the purpose of this statute would only cover images that closely resemble a real child, in other words, a computer-generated child that could be mistaken for an actual child – the statute can also be interpreted more broadly. After all, the New South Wales and Canada decided that cartoons can be children for the purposes of the Act, so these cases can be used to interpret the Coroners and Justice Act clause that states that the “predominant impression conveyed is that the person shown is a child,” and therefore, under this part of the Act, Sarah could be convicted of possession of child pornography because her viewing of the anime characters. The next question is whether Sarah can be convicted under the Criminal Justice and Immigration Act 2008 for the possession of the images of the men beating one another with whips. The pertinent section is §63 of this Act. It states that “it is an offence for a person to be in possession of an extreme pornographic image.” 24 The Act goes on to describe pornographic image as “an image is ‘pornographic’ if it is such a nature that it must reasonable be assumed to have been produced solely or principally for the purpose of sexual arousal.”25 It further defines “extreme image” as “grossly offensive, disgusting or otherwise of an obscene character.” 26 Moreover, “an image falls within this subsection if it portrays, in an explicit and realistic way, any of the following- a) an act which threatens a person’s life, b) an act which results, or is likely to result, in a serious injury to a person’s anus, breasts or genita….”27 The rationale behind this part of the Act is that “access to extreme pornography will tip many hitherto mature, responsible adults over the edge of psychological balance and drive them to commit sex crimes in the real world.”28 This is controversial, to say the least. Berl Kutchinsky, a professor of criminology at the University of Copehagen has this to say about this theory “the aggregate data on rape and other violent or sexual offences from Denmark, Sweden, West Germany and the United States, where pornography, including aggressive varieties, has become widely and easily available during the period we have dealt with would seem to exclude, beyond any reasonable doubt, that this availability has had any detrimental effects in the form of increased sexual violence.”29 Kutchinsky made exhaustive studies, or a number of years, in the above countries before coming to these conclusions. Nevertheless, although the statute in question is controversial, it is a statute, so it must be further examined. The relevant part of this statute would be the definition of extreme image as either an act that threatens a person’s life or an act which results, or is likely to result, in a serious injury to a person’s anus, breasts or genitals. The question is whether whipping a naked person with a whip would be threatening to the person’s life, which would depend on how violent the acts were. Moreover, Sarah would have a defence to the charges if she could show that the men are engaging in consensual play. According to §66 of the Criminal Justice and Immigration Act 2008, “It is a defence for D to prove…b) that the act or acts did not involve the infliction of any non-consensual harm on any person.”30 In other word, if these men are engaging in consensual BDSM play, which is most likely the case, then Sarah would have a defence. Of course, proving that this is the case might be difficult to do, as it is not always easy to prove that people on the Internet are engaging in consensual play. She might have to track the men down and have them testify on her behalf, which would be almost impossible to do, as the images are on the Internet, and these men could be located anywhere in the world. Perhaps the website has a disclaimer on it that states that all acts are consensual, and this would be a point of evidence in her favor, but would not necessarily be dispositive, as a website can claim this when it is not actually true. Is Debbie entitled to compensation because she did not consent to the e-mail? According to the Privacy and Electronic Communication Regulations Act 2003, a person cannot transmit an e-mail for the purposes of marketing, unless that person has consented.31 However, the exceptions are when the recipient’s information was obtained in the course of a sale to the recipient; the direct marketing is in respect to the person’s similar products and services; and that the recipient was given a chance to refuse the use of her contact details and did not do so when given the chance.32 In this case, Debbie was a previous visitor to Poshpaws website. She wasn’t the recipient of a previous sale. Therefore, the exception set out that states that if the recipient was the subject of a previous sale, and the direct marketing is in respect to the person’s similar sales and that the recipient was given a chance to refuse the use of her contact details would not apply. Therefore, Debbie should be entitled to compensation under the Privacy and Electronic Communications Regulations Act 2003. Conclusion As to the question of whether Naj was within his legal rights to use surveillance on his employees in the form of monitoring their online use, the evidence is pretty clear. While Sarah does have a right to privacy, as evidenced by several cases, this right to privacy is not absolute. As long as there is a legitimate reason to monitor, then Naj can overcome the privacy objections. In this case, there is plenty of evidence that employee on-line usage can be harmful, for reasons ranging from the fact that the employer can be on the hook for criminal usage by an employee, such as when an employee accesses child pornography, to the fact that employees surfing the net on company time is tantamount to a theft from the employer. Indeed, Sarah ended up possibly violating several criminal laws, so if Naj was not properly monitoring her, she could have opened up Naj to criminal liability, so she just proved why monitoring is acceptable. Moreover, if Naj had a clear policy regarding on-line usage, Sarah really would not have a leg to stand upon. So, Naj is clearly within his rights in monitoring Sarah. Moreover, Sarah probably would not have reason to get the information that Naj was keeping about her, due to the fact that, under the Data Protection Act, she is only entitled to know what was being compiled and why, while not having the right to possession of this same data. As to the anime images, it is pretty clear that the law states that these images would be that of children. New South Wales and Canada have already decided this in the affirmative, and, while UK’s own law regarding this is rather vague, the decisions in New South Wales and Canada show that anime children are still children. Likewise, the question of whether she can be convicted for viewing the images of men being beaten will turn on where they were beaten, and how severely, and if it was consensual. Bibliography Aiello, J.R. & Svec, C.M. (1993). Computer monitoring of work performance: Extending the social facilitation framework to electronic presence. Journal of Applied Social Psychology, 23, 537-548. Champion, D. 2010. On the edge: BDSM and heteronormative denigration. [online] Available at: http://www.backlash-uk.org.uk/wp/?page_id=504 Herbert, W. 2009, “Workplace Consequences of Electronic Exhibitionism and Voyeurism.” [online] Available at: http://works.bepress.com/cgi/viewcontent.cgi?article=1015&context=william_herbert Kesan, J.P. 2002, “Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy In the Workplace,”Florida Law Review, vol. 5 Kierkegaard, S. 2005, “Privacy in Electronic Communication: Watch Your E-Mail, Your Boss Is Snooping! Computer Law & Security Report, vol. 21, no. 3, pp. 226-236, web accessed 10 June 2010, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1144280 Kutchinsky, B. 1991. Pornography, sex crime and public policy. Presentation to the Australian Institute of Criminology conference. [online] Available at: http://xuk.obu-investigators.com/pdf/kutchinsky.pdf Rustad, Michael and Paulsson, Sandra R., "Monitoring Employee E-Mail And Internet Usage: Avoiding The Omniscient Electronic Sweatshops: Insights From Europe." (2005). Suffolk University Law School Intellectual Property. Paper 6. http://lsr.nellco.org/suffolk_ip/6 Whitty, M. T. (2004). Should filtering software be utilised in the workplace? Australian employees’ attitudes towards Internet usage and surveillance of the Internet in the workplace. Surveillance & Society, 2(1), 39-54. Valenzuela Contreras v. Spain (1998) 28 E.H.R.R. 483 and Douglas v. Hello Ltd. [2001] QB 967. Niemitz v. Germany (1992) 16 E.H.H.R.R. 97 MS v. Sweden(1999) 28 E.H.R.R. 313 ECHR Friedl v. Austria (1996) 21 E.H.R.R. 83 Halford v. UK [1997] I.R.L.R. 471 (1997). Holland v. Queen (2005) 154 A Crim R 376 Leander v. Sweden (1987) 9 E.H.H.R. 433 ECHR McEwen v. Simmons and Anor [2008] NSWSC 1292 R v. Sharpe [2001] 1 SCR 45 Data Protection Act 1998 Coroners and Justice Act 2009 Coroners and Justice Act 2009 § 62(1) Coroners and Justice Act 2009 § 62(2)(a) Coroners and Justice Act 2009 § 62(2)(c) Coroners and Justice Act 2009 § 65(6)(b). Criminal Justice and Immigration Act 2008 §63(1) Criminal Justice and Immigration Act 2008 §63(1) Criminal Justice and Immigration Act 2008 §63(6)(b) Criminal Justice and Immigration Act 2008 §63(7) Criminal Justice and Immigration Act 2008 §66(2)(b) Human Rights Act 1998, Article 8 Read More