Recent litigation has shown that misunderstandings relating to the nature of the online public domain are facilitating an increase in online illegal activity.  The root of this problem is the presumption that uploading information to the internet makes it part of the ‘public domain’ where ‘ownership’ automatically ceases to exist.  If this were unequivocally true, it should follow that not being able to attribute an infringing work to an owner should make it impossible to assign liability for its contents.  This reality has the potential to be disastrous, and fortunately, the courts have started addressing the problem.

In Hays Specialist Recruitment (Holdings) Limited and Another v. Ions and Another, Ions, while employed by Hays, was directed to use the social networking site, Linkedin, to manage business contacts.  Ions retained and later used that confidential information in subsequent business, and submitted that he was entitled to do so because, once the information was uploaded, it was no longer private and confidential, but rather public and available to anyone.  Hays claimed that the information was confidential and that Ions had broken his restrictive covenant with Hays.  The court ruled in favor of Hays, holding that Hays owned any material, whether online or not, compiled by an employee in the course of their employment.

In Firsht v. Readman, Mr. Grant Raphael intentionally posted a false and defamatory profile of Mr. Firsht on Facebook.  The internet protocol address for the posting was traced to Mr. Raphael’s home computer, and therefore, despite the profile technically existing in the public domain, Mr. Raphael was still found to be its creator and owner, making him guilty of defamation and libel.

These cases illustrate that liability for illegal acts committed with the aid of online information technology cannot be escaped by submitting that the questionable content existed in the public domain and therefore did not belong to anyone.  Despite the ‘public nature’ of online material, ownership of that IP, and the rights and duties inherent therein, do not disappear with the click of a mouse.

According to copyright law, ownership rights automatically belong to authors of original, fixed forms which embody the expression of ideas, even if those works have not been registered.  Since expressions of ideas posted on the internet are original, fixed in form, and facilitate the dissemination of information, (a fundamental purpose of copyright law), it follows that ownership rights naturally attach to those works, and so do any relevant liabilities associated with the misuse of their content.

The government should strive to enforce the court rulings by amending its copyright legislation to include a distinction between ‘the traditional public domain’ and ‘the online public domain’.  It should articulate the liabilities which arise from improper use of online IP, as well as the nature of ownership in the online public domain.  The virtual world has its parallels in the physical world.  A crime committed online is a crime nonetheless, and there should be real life consequences for illegal online activity.