In this day and age, where every person and his or her intelligent dog is able to post content to the internet, whether it be textual, audio or audio-visual, the risk of third parties having a crack at you, your agency or business through the publication of infringing content has, I suspect, never been greater. By infringing content, I basically mean any content that is invasive of another’s rights or interests. Examples include defamatory comment, certain kinds of abusive comment, online harassing comment, breach of copyright … the list goes on. No one is immune to this. Government agencies have experienced it (here and abroad), businesses have experienced it, and individuals have experienced it.
I have spoken before about how internet-based technological change precipitates change to the legal approaches to dealing with infringing content. In a nutshell, the traditional approach that often worked in the past, of informing the innocent internet service provider (ISP) of the infringing behaviour and asking it to either shut down the site or provide details identifying the relevant account holder (either directly or pursuant to a court order), may no longer be a sufficient approach. Rather, it may be a subset of a wider strategic approach or it may even be inappropriate, in the sense of not being in a client’s best interests. In some cases, the desired result might be achieved by doing nothing (and therefore not fueling the proverbial fire) or by using technology to counter the infringing material that technology has enabled someone to bring to your doorstep and, should they choose to look, the doorstep of millions if not billions of others.
One of the reasons why attempting to have a site shut down might not (of itself) work is because doing so can be akin to playing “whack-a-mole”. You have one site shut down only to find that another springs up. Alternatively, for all you know, there may already be multiple sites in existence with the infringing content, all populated with the same unpleasantness, some lying in waiting behind password protection in case a primary site is shut down, and all hiding in the perceived protective shadow of anonymity.
Newish technologies - particularly but not only RSS - make this kind of tactic very easy to perpetrate. For example, if you know what you’re doing, you could set up Blog A within 5 minutes, take Blog A’s RSS feed and use it to populate Blog B, all in a matter of another five or so minutes, and so on. The result is a daisy-chain of filth or otherwise infringing content propogating the internet. All the perpetrator needs to do is write a post to Blog A, and then Blogs B through Z (all, for example, sitting on different servers in different countries) will be automatically populated with the same content in a matter of minutes. A similar result can be achieved with email to RSS conversion tools or by the use of excellent services such as Posterous through which, with the sending of a single email, you can automatically update multiple blogs, Twitter, Flickr and other sites more or less instantly. And here’s the kicker. Sending a cease and desist letter to the good people at the likes of Posterous (who, I stress, have created a tremendous tool for those with benign intent) will not help you once the content is published, because while Posterous might shut down the user’s account, it cannot “pull back” the content that now exists out in the ether in multiple forms on multiple sites and, quite probably, in the caches of multiple search engines and RSS feed repositories.
For these reasons, appropriate responses to online infringing behaviour may need to be more strategic and more multi-disciplinary than in the past, requiring the input of one’s lawyers, managers, technologists and PR people. Yelling at an ISP to “Shut ‘em down!” may not be enough.
