Virtual Trespass

By

Sherin Kunhibava

Abtract

This article aims to create awareness on the developments that have occurred in American cases in relation to the application of trespass to chattel in newer settings, namely cyber space. Trespass to chattel has been successfully extended to apply in a number of cases which involved Internet Service Providers and also Data Collection Robots. There are, some fears of its extension especially after the decision of the trial Court and Court of Appeal in Intel v Hamid. However the more recent Supreme Court decision in Intel v Hamidi has fortunately clarified the law.

Introduction

Can there be an action of trespass, in the virtual world?

To understand computers especially the Internet, real world situations are compared to, related to, and often used to describe situations in the virtual world. For example people using the Internet are said to browse it. At commercial sites we shop or purchase a product as we would in the real world. Worms and viruses that corrupt the Internet are given names and graphically drawn as real live worms that wiggle . The list is endless. The truth however is that the Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer, networks. It is thus a network of networks. A web site is no more than a collection of digital information, and browsing is ‘simply the transferral of information in the form of ones and zeros from one computer’s memory to another’s . There is therefore no physical presence as in the real world. A web site cannot be a plot of land or premise because it has no physical presence. How would these facts affect the tort of trespass?

Let’s say hackers enter an official government web site that is strictly for the use of personnel, would this amount to trespass? Can this be compared to the physical entering of a person on land without the authority of the other?

Trespass

‘Trespass’ was defined way back in Entick v Carrigton simply as ‘Every invasion of property, be it ever so minute, is a trespass.’ Our Malaysian courts follow the same principle where Abdul Malik Ishak J added in MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd (No 2) that a trespasser is liable whether he knows that he is trespassing or he does not know that he is trespassing.

As can be clearly seen trespassing must be done on property, a web site may be described as a site but in actual fact it is no more then a collection of zero’s and one’s. Further ‘hacking’ itself does not in actual fact cause any physical presence on the web site. Although trespass to land per se may not wholly apply to the virtual world, there is another type of trespass that has actually worked.

The trespass to chattel or goods, a property tort, has been extended by a number of American cases to cyberspace.

‘Trespass to chattels is a common law tort action which provides redress for unauthorized use of or intermeddling with another’s personal property. The interference must be intentional; it must be unauthorized; it must be substantial, involving actual harm or a serious infringement of rights, and it must involve physical contact with the property. Chattel, or personal property, is defined as physical, tangible property, and is distinguished from both real property and intellectual property. Consent of the owner is a defense to trespass to chattel, although the owner can revoke consent, or limit it as to time, place, or other conditions. Acting outside the scope of limited privilege may create liability for trespass to chattel. Defendants may raise other defenses to trespass to chattel, including a privilege for using public utilities.’

Tresspass to chattel has been pleaded where the plaintiff was an internet service provider (‘ISP’) complaining of unsolicited commercial bulk e-mail, also known as spam or Data search and collection robot cases .

Summarised below are the various findings of recent cases which have allowed or disallowed the ancient doctrine of trespass to chattel in the contemporary virtual world.

Cases where trespass to chattel was successful

In the case of Compuserve Inc v Cyber Promotions Inc the plaintiff CompuServe, inter alia, provided an e-mail service to its subscribers which the defendant took advantage of by sending e-mail advertisements to hundreds of thousands of Internet users many of whom were the subscribers of CompuServe. The plaintiff sought a preliminary injunction to prevent the defendant from sending any more e-mail advertisements until the final conclusion of the trial. They claimed that the defendant by sending the unsolicited e-mails were committing trespass to its personal property or chattels. The District Court of Ohio accepted the argument and approved the use of the tort of trespass to chattels as a theory of spammers’

liability to ISP’s, based upon evidence that the vast quantities of mail sent by spammers both overburdened the ISP’s own computers and made the entire computer system harder to use for recipients, ie the ISP’s customers . The District Court stated the following:

‘… a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another… … It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants’ contact with plaintiff’s computers is clearly intentional. Although electronic message may travel through the Internet over various routes, the messages are affirmatively directed to their destination’.

A similar approach was taken in the case of eBay Inc v Bidder’s Edge Inc which involved data and collection robots searching for information . eBay is the leading online auction website. Bidder’s Edge aggregated data from eBay and other online auction websites, and presented that data for comparison shopping. Although eBay permitted aggregators to search its databases, it had denied permission to Bidder’s Edge to do so. eBay claimed that Bidder Edge’s activities constituted a civil trespass. The court held that in order to prevail on a claim for trespass based on accessing a computer system, the plaintiff must establish:

(1) the defendant intentionally and without authorisation interfered with plaintiff’s possessory interest in the computer system;

(2) the defendant’s unauthorised use proximately resulted in damage to plaintiff.
The court held that eBay had presented evidence sufficient to establish a strong likelihood of proving both prongs and ultimately on the merits of its trespass claim. The court also relied on the damaging impact this activity could have, especially if replicated by other searchers on the functioning of a Web site’s computer equipment. Here the preliminary injunction sought for was granted.

In another robot search case of Register.com, Inc v Verio Inc, the Court issued a preliminary injunction enjoining Verio Inc from either utilizing a search robot to obtain information from Register.com’s Whois database, or utilizing information derived from that database for mass unsolicited advertising by telephone, direct mail or electronic mail. The Court held that Verio's actions would likely constitute a breach of the plaintiff's Terms of Use, as well as a violation of relevant legislation and a trespass to chattels. The
Court found that Register.com was likely to prevail on its trespass to chattel claim as a result of Verio’s use of a search robot to obtain data from Register.com’s Whois database .

As stated by the Court:

‘One who uses a chattel with the consent of another is subject to liability in trespass for any harm to the chattel which is caused by or occurs in the course of any use exceeding the consent, even though such use is not a conversion.’

The Court held that once Register.com objected thereto, for example, by filing this suit, Verio knew that its use of a search robot exceeded the scope authorized by Register.com.
The Court noted that “evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels.” While Verio’s use alone did not significantly impair the operation of the Who is database, the threat that many others would also use search robots to access the Who is database if the Court did not find such use prohibited, created a sufficient threat of injury to warrant injunctive relief. In reaching this conclusion, the Court relied heavily on ebay Inc v Bidder's Edge Inc.

While in the preceding cases trespass to chattel was pleaded successfully on grounds of harm or threat of harm, in the following case there was an absence of both.

In Intel v Hamidi , Intel brought an action against Hamidi, a former employee seeking an injunction to prevent him from sending further e-mails to the plaintiff's employees. Hamidi had used Intel’s internal e-mail system, which was connected to the Internet, to send e-mails to between 8,000 and 35,000 employees on six specific occasions and he refused to stop when Intel requested that he do so. These e-mails criticised Intel's employment practices. The messages did no harm to Intel's computer systems and caused no delays in its computer services. Intel's only claim of harm was that the employees who read Hamidi's email were distracted or upset or lost productivity The trial court granted summary judgment for the plaintiff and issued a permanent injunction on a theory of trespass to chattels. The Court of Appeal affirmed this decision. (The Supreme Court’s decision is discussed below).

Before we proceed with Ticketmaster Corp v Tickets.com, Inc ,and the latest Supreme Court decision in Intel v Hamidi let us pause and reflect.

Has the trespass to chattel theory been stretched too far? While in Compuserve it is clear that the trespass to chattels theory provided a weapon against “spammers”. In eBay, the trespass to chattel theory was used to suppress legitimate competition. Bidder’s Edge a ‘price comparator’ was blocked from gathering price data. In Register.com the decision in eBay and the trespass to chattel theory was further extended ‘to a threat that many others would also use search robots’, although there was no significant damage done to Register.com’s operation of the database by Verio’s action. Trespass to chattel theory was also used to stifle free speech, in the Intel v Hamidi case. There was no harm to Intel’s computer system or services by Hamidi.

Based on the decisions of the foregoing cases there are fears that trespass theories might in the future be used to block search engines and linking, and thereby threaten two of the most important aspects of the Internet. For example if a web site continues to offer a link to another site after being warned that the traffic it generates is not welcome, it could fall within the reach of trespass law. Similarly, a search engine could face trespass liability if it did not comply with a request to stop crawling a site.

Cases where Trespass to Chattel was unsuccessful

The following two decisions disallowed the theory of trespass to chattel, the basis for their decision being that no harm or threat of harm to the plaintiff’s computer or services was proved.

In Ticketmaster Corp v Tickets.com, Inc, the Court denied the plaintiff's application to stop the defendant from using spiders to copy factual information contained on the plaintiff's web site. In so holding, the court rejected plaintiff's claim that such spidering constitutes an improper trespass on plaintiff's computers because the spidering neither harms plaintiff's computers, nor interferes with their use. On the issue of trespass the court held the following:

“A basic element of trespass to chattels must be physical harm to the chattel (not present here) or some obstruction of its basic function (in the court's opinion not sufficiently shown here).”

Based on the above, the court found that Tickets.com's use of plaintiff's site was slight and did not interfere with its operation. Moreover, while Tickets.com's actions may deprive plaintiff of some advertising revenue, it may also produce a benefit by referring customers seeking tickets to Ticketmaster.

Rejecting plaintiff's other arguments as well the court denied plaintiff's application for a preliminary injunction. The Supreme Court in Intel v Hamidi later described this case as “the one case where no such effect (harm), actual or threatened, had been demonstrated, the court found insufficient evidence of harm to support a trespass action”.

When Intel v Hamidi reached the Supreme Court in California, the lower court’s and Court of Appeal’s decision was reversed. The Supreme Court held that the tort of trespass to chattels “does not encompass, and should not be extended to encompass”, Intel's electronic communications, which neither damaged nor impaired the functioning of plaintiff's computer system. The Supreme Court described trespass to chattel as follows:

“In the absence of any actual damage, a cause of action for trespass to chattels will not lie; a mere momentary or theoretical deprivation of use is not sufficient unless there is a dispossession. Thus, plaintiff's complaint was about the content of defendant's messages rather than the functioning of the company's e-mail system. Further, the consequential economic damage that plaintiff claimed to have suffered, i.e., the loss of productivity caused by plaintiff's employees reading and reacting to defendant's messages and plaintiff's efforts to block the messages, did not constitute an actionable trespass to plaintiff's personal property.”

This decision by the California Supreme Court corrects the lower court’s decision which sought to extend the theory of trespass to chattel to situations when no harm or threat of harm occurred.

Therefore following the Supreme Court’s decision in Intel v Hamidi, one can safely say that Courts in the future would must likely refuse any claim of trespass to chattels to electronic communications that do not threaten or actually harm property.

Conclusion

While trespass to chattel heroically tackles spammers as in Compuserve and Register.com, concern does arise when it is used for more innocent and useful causes as in ebay .

It is opined that the cases of Ticketmaster.com and Intel v Hamidi do not ‘contain’ or ‘restrict’ the doctrine of trespass to chattel in cyberspace, they have merely clarified the law, ie the theory applies in any situations where harm or threat of harm is found.

Therefore fears that a search engine may be blocked or linking may be prevented is not groundless. As long as these two activities can be shown to cause harm or threat of harm an action in trespass to chattel may arise.

To answer the question posed at the beginning of this article, yes trespass can and is applied to cyberspace; although many may hail its resurrection others may fear its extension. Suffice to say; today the threat of trespass to chattel being overextended is just a fear. Lets hope it remains a fear in reality and virtually.

Your Clients On The Internet

Some Practical Law On Domain Names And Trade Marks


Internet domain names are likely to become extreme important for because in the near future as email replaces the use of telephone and users increasingly use the World Wide Web to order products. The important of domain names for business on the Internet has been demonstrated recently by a series of legal dispute over the possession and use of certain domain designations. These disputes have involved trademark infringement, although there is also the possibility of infringement of s.52 of the Trade Practices Act and for actions in passing off.

What is a domain name

An essential part of the Internet is the manner of distinguishing and locating all the various computers, users, files and other resources attached to the Internet. This is a accompanied via Internetworking Protocol Addresses (“IP Addresses”), which are represented as strings of digits is difficult and cumbersome to remember, the IP Address system has been overlaid with a more user-friendly system of “domain names”. This allows Internet resources to be assigned a designation that is more easily remember, like for example, “Mcdonald.Com”.

As with IP addresses, domain names are divided into fields and separated by periods/

“Philip.cornella_cit.cornella.edu, for example, locates Philip at a machine name “cornella at Cornella University. The father you go to the right in the domain name, the more general the address becomes. There are only a limited number of designators for the right-most field and theses either show the country or type of organization to which the address belongs.

Registration

Anyone can register an Internet domain name submitting a completed registration form to a delegated authority (there is currently no charge). The registration is simply a listing service undertaken on a first come-first served basis and no adjudication is made of the ‘right’ of an applicant to a name .Rather, application have the responsibility for ensuring they have due title to a name and by lodging a request for a name assert such a claim. It is up to the requester to be sure they are not violating anyone else’s trademark.

At present, once an organization or person has registered domain name in Australia, they may use it, reassign it or simply hold on to it. Where there is a conflict between an applicant and an existing listing held by delegated authority, it is left to the parties to resolve the problem.

Possible legal wrangles

The registering of a domain name does not entitle its owner to use the name in a way that conflicts with a registered trademark. The issue therefore becomes whether the use or otherwise of a domain name can in fact amount to infringement. This has already been raise in the US in a number of cases including MTV v. Curry where Curry, employed as a host on MTV, organized an Internet site develop to popular culture and entertainment. He registered the site as “mtv.com” and refused to surrender or dismantle it on leaving the company. MTV sued. Pending trial, the parties quietly settled the dispute, with Curry handing over the rights to the “mtv.com”.

Despite it’s interest value this and other case do not provide any relevant precedent on the factors which might cause a domain name to infringe a trademark. The usual law applies. Though domain names designate a location they also clearly indicate the source or affiliation of the Internet resource (the function of trademark). As such they could lead to deception or confusion of customers who are familiar with a registered trademark for goods or services, especially where use of the Internet becomes a natural extension of the service offered in real space.

Matters which are yet to be determined include the effect of the top level domain name on an action for infringement. Theoretically it might be possible for example, for “mtv.com” to infringe MTV’s trademark while “mtv.edu” might not.

It also seems possible that a form of ‘cybermark’ law will develop preventing the use of a domain name which is ‘substantially identical’ or ‘deceptively similar’ to another domain name in cyberspace – neither imported from real space cyberspace refers to the global, link environment of computer information). This would be natural result of a domain acquiring a reputation based entirely on it’s Internet activities rather than business in the ‘real world’.

The future

Wholesale registering of Internet domain names by those with no intention of using them and the increasing number of names being registered, has brought about a change in the rules for registration in the US from July of 1995. Though names are still allocated on a first-come-first served basis, if the domain name is not used for a period of 90 days then that name must be relinquished on request. In addition, if someone doesn’t like the fact that an applicant owns a particular domain name that party can try to summarily force them to relinquish it. They can do this by presenting proof of a current registered trademark that is owned by them and that is ‘identical’ to the domain name. The owner of the domain name then has 14 days to prove that they also have the relevant registered trademark before their domain name is taken away.

However if both the domain name holder and the company trying to acquire it can prove they have the relevant trademark registration, a stalemate will result. InterNIC, the North American name registration authority, will take no further action and the domain name holder an only be restrained from using the name by a Court order.

It is likely that similar problems will cause similar rules to be adopted here in the future. Businesses are well advised to register a domain name as early as possible and, if they have not already done so, secure a trade mark corresponding to their domain name. The lack of settled trademark law with respect to domain names should otherwise not deter business from venturing out into a cyberspace.