Applying Nuisance Law To Internet Bad Acts

New Jersey Law Journal May 2, 2011

By Jonathan Bick Bick is of counsel to Brach Eichler in Roseland and is an adjunct profes­sor of Internet law at Pace Law School and Rutgers Law School-Newark. He is also the author of 101 Things You Need to Know About Internet Law [Random House 2000]

Rather than pursuing traditional criminal or civil action, which are based on a specific act, the use of nuisance-law injunctions may be a better alternative in responding to Internet bad acts, be­cause such injunctions are based on gen­erally objectionable behavior. Just as the application of nuisance law helped curb the production and distribution of tradi­tional obscene materials four decades ago, it may be useful for reducing Inter­net bad acts today. Applying nuisance law to Internet bad acts also provides the advantage of subjecting third par­ties, rather than the defendants, to suit­able injunctions.

During the 1970s, nuisance law presented an opportunity for controlling obscenity in the era of triple X-rated bookshops, live sex act venues and adult movie theaters. There is an extensive line of common-law “moral nuisance” cases that is used to control sex-trade­related establishments, bars and gam­bling establishments, which could be applied to Internet cases.

Nuisance law has also been used by the environmental movement to address pollution, and by the climate-change movement as a basis for litigation to stop firms from emitting green house gasses.

Nuisance law has already been useful in cases involving alleged bad actors on the Internet. In Dart v. Craigslist, Inc., 665 F.Supp. 2d 961 (N.D. Ill. Oct. 20, 2009), a nuisance suit was brought against Craigslist for facilitating prosti­tution on the Internet. The court ruled in favor of Craigslist, which, as an Inter­net service provider, was immune from prosecution for wrongs committed by its users. However, the lawsuit is generally understood to have achieved its objectives because it caused Craigslist to alter its service category in compliance with the plaintiff’s demands Craigslist changed the name of its erotic category to adult, and applied a manual review process to all submissions in the adult category. In another example, City of New York v. Smokes-Sprits.com Inc., 541 F.3d 425 (2d Cir. 2008), rev’d on other grounds sub nom Hemi Group, LLC v. City of New York, 130 S. Ct. 983 (Jan. 25, 2010), a nuisance suit was applied to Internet cigarette sellers.

Nuisance law provides a more ef­ficient and constitutional means of re­moving obscene, fraudulent and mali­cious materials from the Internet. Since nuisance litigation generally leads to injunctions rather than a loss of liberty, the procedures for a nuisance injunction are more rapid than criminal proceed­ings. While nuisance litigation has less harsh remedies than a criminal action, the speed of application of nuisance action is better suited to address Internet activities.

Consider the issue of Internet pornography. The First Amendment generally protects Internet pornography. However, it does not protect obscene Internet pornography. In order to tell the difference, the courts rely on Miller v. California, 413 U.S. 15, 23 (1973); Roth v. United States, 354 U.S. 476, 485 (1957). In Miller the Court found that pornography was “obscene” if “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,” and “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”

However, Internet pornography creates particular problems in applying the Miller test. An Internet site that is lawful­ly operating in one state has the potential to violate the “contemporary community standards” in another state. Even though the court in United States v. Kilbride , 584 F.3d 1240, 1254 (9th Cir. 2009), found a “national community standard” for use in Internet pornography cases, the issue of Internet pornography is still problematic due to the quantification of that standard.

Four laws are responsible for the majority of criminal prosecutions related to obscenity on the Internet. First, 18 U.S.C. § 1470 (2006) prohibits us­ing any means of interstate commerce to knowingly transmit obscene materials to those under sixteen years old. Second, 47 U.S .C. § 223(d) (2006) prohibits making interactive obscene material available to those less than eighteen years old. Third, 47 U.S .C. § 231 (2006) makes it a crime to make a commercial communication on the Internet that includes obscenity avail­able to someone under seventeen years old. Finally, 18 U.S.C. § 2252B (2006) prohibits the use of a misleading Internet domain name to deceive someone into viewing obscene material.

The implementation of these laws is not easy, thanks to the First Amendment. The First Amendment protects some pornography that is not obscene, and the definition of obscenity is not clear. Additionally, Congress’s previous attempts to control pornography on the Internet have faltered because of the constitution­al problems with restricting indecent, as opposed to obscene, pornography.

While the existing criminalization approach to controlling Internet obscen­ity has not worked well, the application of nuisance law might. In particular, the Restatement (Second) of Torts, § 821D (1979), defines a private nuisance as a non trespassory invasion of another’s interest in the private use and enjoyment of land. Additionally, it is generally understood that a public nuisance may be considered an unreasonable interference with a right common to the general public. Thus, either nuisance law whether private or public could be applicable to Internet bad acts.

Courts have found enough connection with land to sustain private nuisance claims involving annoying telephone calls as a form of communication, ac­cording to Brillhardt v. Ben Tipp, Inc., 297 P.2d 232 (Wash. 1956). Thus, a pri­vate nuisance claim may be used for In­ternet bad acts when the Internet is used for communication purposes.

A public nuisance can result from any bad act that may be harmful to the public. The public nuisance action can be brought by either a government official or an individual, under the appropriate conditions.

Courts tend to allow nuisance remedies to address pervasive harms that have insignificant immediate effects, but that cause injury to the public when they persist for a long time. For example, in an Internet context, the owner of a mail server can recover damages for a temporary decrease in the material function of a computer resulting from a spammer ’s un­lawful activities. On any mail server, the decrease in performance for a short time period is a minor aggravation. But, over time, said performance decrease to all mail servers would cause serious harm.

Since civil nuisance actions do not require proof beyond a reasonable doubt to obtain an injunction, they also offer procedural advantages. The use of civil rather than criminal law may result in lower costs because the procedural safe­guards required for criminal defendants are not applicable. Since United States v. Kilbride, 584 F.3d 1240 (2009), it can be argued that nuisance injunctions could be particularly effective because the court applies national community standards to the Internet.

As noted above, the application of nuisance law to Internet bad acts has al­ready commenced. The public nuisance suit against Craigslist caused it to change the way it handled adult content, and a court supported the notion that a plain­tiff could sustain a nuisance suit based on the targeting of minors by Internet cigarette merchants. This type of use of nuisance law is logical and effective, and we should expect to see its continued increase.