Following the technological development spreading throughout the entire countries of the world including the third-world countries, the social media platforms constituted one of the means of global internet network and websites for communication and connection across different countries. Such communication and connection included diverse social, humanitarian, commercial, artistic and other aspects among which are the establishment of permanent relations, friendships, and connections among internet users. Furthermore, the flow and flexibility of information, as facilitated by recent communication devices such as the computer and the mobile phone, have positive effects on different aspects of life. Nevertheless, such flow of information has negative effects on different social, cultural and private aspects of the lives of individuals be they on the local or international level. In reaction to such misuses, there can be many individuals and entities who can assume civil lability towards social media misuse. There are several classifications for such individuals and entities depending on their liability of use; there are those who act as mediators on the internet who represent internet service providers, internet content providers, carriers of information and lastly; the internet user who is labelled in technological terms as “end user”. As such, the liability can be classified according to the above categories to several types of liabilities, including; personal liability, the liability of the superordinate towards the acts of its subordinate, and the objective liability. Each will be dealt with in details in the present research.
The present research is of significance with respect to the recently emerging and spreading electronic social media as the vast majority of global population, particularly in Iraq, use social media websites which are one of the significant portions of the internet. Thereupon, this entails the attempt to reach a legal system appropriate to the nature of civil liability arising out of the misuse of social media. The problem of the present research revolves around the difficulty in determining the defaulting individual or entity bringing about the damaging or illegal act – social media misuse – as well as bringing forth objective liability system of rules appropriate to the developments made in the field of digital or electronic media in general, and social media in particular.
- Social media is a recent technology of communicating information which utilizes the computer as means for achieving this end. These means make possible the electronic communications and allow for exchange of information, ideas and other means of expression to express opinion. They are facilitated through what is known as virtual platforms or communities. Social media also makes use of web technology (i.e. World Wide Web) and mobile technology (i.e. mobile phones, tablets and touch screens) to establish interactive media platforms. Through these platforms, ideas are suggested, information created, contents discussed, and perspectives and opinions established.
- Social media is one of the means of communicating via world wide web and websites which are fast interactive social links and more effective than other means of media. The vastest majority of audience of difference cultural backgrounds, knowledge fields and affiliations are exposed to social media.
- Of the most significant individuals who can assume civil responsibility towards the use of the internet are:
- Internet service provider: Mostly represented by the company which makes available for its clients access to internet. As such, the provider is considered the source of information flow across the network; the publisher of the website; and the primary responsible for the information appearing on the internet.
- Content provider (internet content): The company which designs the content of the website on the network in return for certain fees. It supplies the internet with different types of information.
- Hosting provider: Any natural or legal individual who stores applications, blogs, and information records for his clients; supply them with technical and information-related means which help them access such information via the internet; in addition to providing websites with texts, drawings, articles, interviews and news.
- Information transmitter: The entity which undertakes the physical transfer of information using its technical means.
- Internet user: The individual who connects to a website on the internet with the aim of obtaining or sending information.
- With respect to the personal liability arising of the misuse of social media, it aligns with the damaging acts of some individuals and entities operating on the level of world wide web, including:
- Internet user if identified: The personal liability here arises from the illegal or damaging acts committed by such an individual. These acts are considered a breach of his general legal obligation of not causing harm to others as far as he is aware, such as writing illegal anonymous blogs, libel, defamation etc.
- Internet service provider (of his own personal acts): If the provider breaches his primary obligation towards internet users, such as monitoring the content of information posted on the website and controlling such posting, it is considered a breach of previous legal obligation of avoiding to cause harm against others. Such liability is materialized upon his sense of awareness.
- Content provider (internet content): The liability arises from his personal acts towards internet users. As such, he is responsible for checking the legality and truthfulness of the information and the content of the message prepared and posted on his websites. Thereupon, his liability rests on his actual ability to control information and their posting.
- Hosting provider: The liability arises from his personal acts towards internet users. That is, if the provider breaches his primary obligation of monitoring the websites created and the content of each website (in case it breaches the law). Furthermore, liability also includes his personal responsibility of hosting service. That is, if he is hosting on his website, which he manages, an anonymous website for a particular individual.
- With respect to the acts of others which represent misuse of social media, particularly the liability of the superordinate towards the subordinate, they align with the damaging acts of some individuals and entities operating on the level of internet use, including:
- Liability of internet service provider: Mostly represented by a group of companies providing this service or through several companies each providing the same internet service and each subject to each other. As such, achieving liability means that there should be an affiliation relationship which is grounded in the existence of an actual authority of the superordinate in monitoring its subordinate and supervise and instruct the same.
- Information transmitter: Represented by Ministry of Communications or Communication and Media Commission towards the affected user as a result of the acts of internet providers if they are subjected to the said entities.
- With respect to the objective liability arising of the misuse of social media, we find that this type of responsibility aligns largely with the nature of virtual space or cyber space which is a distinguished feature of the internet. It also aligns more significantly with the nature of those in charge of, or working within, the information network. This is applicable on all kinds of entities operating on the level of network, particularly the intermediary service companies which have to bear liability on the basis of the level of damage only according to the polluter pays principle.
We suggest that the Iraqi legislator puts forth a legal system for the civil liability arising of the misuse of social media and to assess the liability of internet provider on the basis of objective liability depending on the level of damage only. This excludes the existence of offending or deliberate intention so that the affected individual can obtain a compensation against the damages he suffered as a result of libel of defamation directed at the same from anonymous social media accounts. This is conditioned by the requirement that the damaging act resulting from misuse of social media arises out of the service provided by the service provider. Therefore, we suggest the following text to be incorporated: (Internet service provider is liable for the damage suffered by any individual as a result of the misuse of social media and once the affected individual proves the damage took place, excluding the existence of offending or deliberate intention on the part of the service provider, provided that the damage arising of anonymous social media accounts has resulted from the service provided by this service provider).
On the other hand, if misuse of social media is made on known websites on such social media, we suggest that the Iraqi legislator imposes liability on the owner of the known website and assess the same according to objective liability depending on the level of damage only. This also excludes the existence of offending or deliberate intention so that the affected individual can obtain a compensation against the damages he suffered as a result of libel of defamation directed at the same from the known website of social media. Therefore, we suggests the following text to be incorporated: (The owner of the known social media website is liable towards the damage suffered by any individual as a result of misuse of the same website once the affected individual proves the damage took place, excluding the existence of offending or deliberate intention on the part of the owner of the known website, provided that the damage has resulted from using the same website).
To urge information transmitter, represented by Ministry of Communications or Communication and Media Commission to impose monitoring on internet service providers subjected to these entities; their liability is based on the liability of the superordinate on the acts of its subordinate. Therefore, we suggest the following text to be incorporated: (The information transmitter is liable towards the damage brought forth by its subordinate, the internet service provider, as a result of the damaging act of the former, if the damage resulted from an offence made by the same upon rendering its services or as a result of these services as long as it has actual authority in monitoring and instructing the subordinate).
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