e-Commerce Docket Sheet

Moving allegedly defamatory material to a “new directory” on the defendant's Web site as part of a site revision may constitute a “republication” ' an exception to the “single publication rule” ' and so may justify renewing the statute of limitations for a defamation claim. Firth v. State of New York, No. 93031 (N.Y. App. Div. June 12, 2003). Affirming a lower court's denial of defendant's motion to dismiss, the court held that moving the allegedly defamatory material to “a new Internet address” was “akin to the repackaging of a book from hard cover to paperback,” where the repackaging “is intended to and actually reaches a new audience.”

A provider or user of an interactive computer service is immune from defamation liability under the Communications Decency Act (CDA) for publishing third-party material on the service only if a reasonable person would conclude under the circumstances that the material was “provided” for publication on the interactive computer service. Batzel v. Smith, No. 01-56380 (9th Cir. June 24, 2003). The Ninth Circuit, in reviewing the district court's determination that the defendant could not benefit from the statutory immunity found in '230 of the CDA, held that the defendant ' who received the allegedly defamatory communication in an e-mail and then selected and altered it for inclusion on a listserv and Web site ' fit under ?230's definition of a provider or user of an interactive computer service. However, factual questions remained as to whether the e-mail's author “provided” the material to the defendant for publication on the Internet.

A former employee's transmission of messages critical of company management to current employees via the company's e-mail system does not constitute an actionable trespass to the company's personal property under California law. Intel v. Hamidi, No. S103781 (Cal. June 30, 2003). The California Supreme Court held that tort law does not prohibit, nor should it prohibit, “electronic communication that neither damages the recipient computer system nor impairs its functioning.” The court reversed a lower court ruling that upheld the issuance of an injunction against further e-mail by the former employee to the company's system. The court emphasized that its ruling does not foreclose the imposition of tort liability for the transmission of e-mail in other situations such as the sending of large quantities of unsolicited commercial bulk e-mail that may overburden a computer system.

An employee's racially offensive e-mail will not be imputed to the employer for purposes of determining whether a hostile work environment exists if the employer acted swiftly and strongly to deter such e-mail abuses in the future. Curtis v. Citibank, N.A., No. 02-7141 (2d Cir. June 27, 2003). The Second Circuit affirmed, inter alia, the district court's grant of summary judgment dismissing the plaintiff's “hostile work environment” claim that was based on a racially offensive e-mail circulated in the workplace. The court noted that within 3 weeks of the complaint, the employer had disciplined the employees who had sent or forwarded the e-mail, installed a banner on its e-mail system warning against such abuses, and notified all employees of the incident, the penalties given, and the company policy against offensive conduct.

Absent express language to the contrary, the victim of an allegedly offensive e-mail is not a third-party beneficiary of the sender's contract with its Internet service provider and lacks standing to assert a breach of contract claim on this basis. Jane Doe One v. Oliver, No. CV9901516795 (Conn. Super. Ct. May 19, 2003). The plaintiff asserted, among other things, a breach of contract claim against the sender based on the allegedly offensive e-mail. The service agreement in question prohibited the defendant from transmitting harmful or objectionable content, but it did not make third parties such as the plaintiff intended beneficiaries of the contract. The court dismissed the contract claim for lack of subject-matter jurisdiction.

A forum selection clause disclosed to consumers through an Internet hyperlink is enforceable and does not constitute an unfair business practice under California's unfair competition law. Net2Phone, Inc. v. Consumer Cause, Inc., No. B162210 (Cal. Ct. App. 2nd Dist. June 9, 2003). The petitioner, a telephony services provider, made its terms of use and end user license agreement available on each page of its Web site via a highlighted hyperlink. The appeals court held that there was “no unfairness” in the petitioner's requirement that certain contractual terms, including a forum selection clause, be accessible via these hyperlinks, noting that this was “a common practice in [I]nternet business.” The appeals court vacated the lower court's order, which held that a group pursuing fraud claims against the provider was not bound by the forum selection clause.

Repositioning Defamatory Web Material May Be “Republishing”

Moving allegedly defamatory material to a “new directory” on the defendant's Web site as part of a site revision may constitute a “republication” ' an exception to the “single publication rule” ' and so may justify renewing the statute of limitations for a defamation claim. Firth v. State of New York, No. 93031 (N.Y. App. Div. June 12, 2003). Affirming a lower court's denial of defendant's motion to dismiss, the court held that moving the allegedly defamatory material to “a new Internet address” was “akin to the repackaging of a book from hard cover to paperback,” where the repackaging “is intended to and actually reaches a new audience.”

A provider or user of an interactive computer service is immune from defamation liability under the Communications Decency Act (CDA) for publishing third-party material on the service only if a reasonable person would conclude under the circumstances that the material was “provided” for publication on the interactive computer service. Batzel v. Smith, No. 01-56380 (9th Cir. June 24, 2003). The Ninth Circuit, in reviewing the district court's determination that the defendant could not benefit from the statutory immunity found in '230 of the CDA, held that the defendant ' who received the allegedly defamatory communication in an e-mail and then selected and altered it for inclusion on a listserv and Web site ' fit under ?230's definition of a provider or user of an interactive computer service. However, factual questions remained as to whether the e-mail's author “provided” the material to the defendant for publication on the Internet.

A former employee's transmission of messages critical of company management to current employees via the company's e-mail system does not constitute an actionable trespass to the company's personal property under California law. Intel v. Hamidi, No. S103781 (Cal. June 30, 2003). The California Supreme Court held that tort law does not prohibit, nor should it prohibit, “electronic communication that neither damages the recipient computer system nor impairs its functioning.” The court reversed a lower court ruling that upheld the issuance of an injunction against further e-mail by the former employee to the company's system. The court emphasized that its ruling does not foreclose the imposition of tort liability for the transmission of e-mail in other situations such as the sending of large quantities of unsolicited commercial bulk e-mail that may overburden a computer system.

An employee's racially offensive e-mail will not be imputed to the employer for purposes of determining whether a hostile work environment exists if the employer acted swiftly and strongly to deter such e-mail abuses in the future. Curtis v. Citibank, N.A. , No. 02-7141 (2d Cir. June 27, 2003). The Second Circuit affirmed, inter alia, the district court's grant of summary judgment dismissing the plaintiff's “hostile work environment” claim that was based on a racially offensive e-mail circulated in the workplace. The court noted that within 3 weeks of the complaint, the employer had disciplined the employees who had sent or forwarded the e-mail, installed a banner on its e-mail system warning against such abuses, and notified all employees of the incident, the penalties given, and the company policy against offensive conduct.

Absent express language to the contrary, the victim of an allegedly offensive e-mail is not a third-party beneficiary of the sender's contract with its Internet service provider and lacks standing to assert a breach of contract claim on this basis. Jane Doe One v. Oliver, No. CV9901516795 (Conn. Super. Ct. May 19, 2003). The plaintiff asserted, among other things, a breach of contract claim against the sender based on the allegedly offensive e-mail. The service agreement in question prohibited the defendant from transmitting harmful or objectionable content, but it did not make third parties such as the plaintiff intended beneficiaries of the contract. The court dismissed the contract claim for lack of subject-matter jurisdiction.

A forum selection clause disclosed to consumers through an Internet hyperlink is enforceable and does not constitute an unfair business practice under California's unfair competition law. Net2Phone, Inc. v. Consumer Cause, Inc., No. B162210 (Cal. Ct. App. 2nd Dist. June 9, 2003). The petitioner, a telephony services provider, made its terms of use and end user license agreement available on each page of its Web site via a highlighted hyperlink. The appeals court held that there was “no unfairness” in the petitioner's requirement that certain contractual terms, including a forum selection clause, be accessible via these hyperlinks, noting that this was “a common practice in [I]nternet business.” The appeals court vacated the lower court's order, which held that a group pursuing fraud claims against the provider was not bound by the forum selection clause.