Online, we like to talk about what that law says. Plenty of people will give you a rundown of what is and what is not considered legal in a variety of areas of law, including copyright, trademark, defamation (libel), advertising, privacy and so forth.
However, for all of the talk of what the law says, there’s one very serious problem that gets in the way routinely: Reality trumps law.
You see, while the law is an important tool for trying to make the world a more fair place, it’s limited in how it can work, just like any other tool. Sometimes these limitations can be seen as positive things but often times they create unbalance and inequality in the very places it was supposed to fix those issues.
With that in mind, here are just three ways that the court of law, in particular civil law, are limited and why, sometimes, unlawful things go unpunished.
1. Money Does Matter
One of the functions of civil law is that it’s supposed to give someone who is injured recourse against the person who caused the injury regardless of their wealth. For example, if a large corporation did something unlawful that caused harm to an individual or cost them money, they should be able to turn to the courts to make it right.
However, litigation is expensive. Lawyers are experts who command high hourly rates and, depending on where you are, just the filing fees to get a case into court can be cost-prohibitive.
This has two separate impacts. First, it gives people with more money an upper hand. For example, my local court has a filing fee, for most lawsuits, of about $500. That amount means something different to someone making a few thousand per month or someone making tens of thousands.
People with more money not only find it easier to file suit, but when sued they can often drag out the litigation until the person suing can no longer afford it, basically waging a war of attrition. Though, in many cases, the winner can claim attorneys fees and court costs, those are hardly guaranteed.
The second impact is that there are many cases that are simply not worth suing over. If the likely damages are under the estimated costs, it’s often just not worth taking legal action. Though small claims courts, class action lawsuits and awarding attorneys fees are all ways the courts try to mitigate this (in the U.S. at least), they are not always successful.
However, not having money can be advantageous too in some situations. If you don’t have any money, there’s no way for someone suing you to collect on the damages that they are awarded. The adage of not being able to squeeze blood from a stone being appropriate.
All of this combines to makes some litigation flat out futile and unlikely to ever succeed in any meaningful way, no matter how right the person suing is.
2. Geography Is a Problem
Most people know that, if someone infringes your copyright and you’ve registered the work properly (in the U.S.) then you have the right to sue someone for copyright infringement. But what if that person who infringed your copyright lives in another country?
While you could sue in your own country, in many cases, to actually collect any damages you need to sue them in their country where their assets are. However, suing in a different country is more difficult, more expensive, more time consuming and, depending on that country’s laws, potentially impossible.
Though the Internet has largely eliminated the geographic boundaries that separate us, the law still has those boundaries and has to respect them. Though being online means you can find yourself in a dispute with almost anyone in the world, it doesn’t give you the tools to deal with them in a court of law.
If someone in a separate country from the person they are arguing with, they are almost untouchable from a practical standpoint. Simply put, the law was written to protect you from your neighbor, not someone half a world away.
3. The Court of Public Opinion is Real
Finally, with every public dispute, there are two courts to worry about: The court of law and the court of public opinion. This is especially true online where information, opinion and conjecture can travel, literally, at the speed of light.
It’s very possible to be right in a court of law and lose in a much bigger way in the court of public opinion. For example, the RIAA’s lawsuits against suspected file sharers, including Joel Tenenbaum and Jamie Thomas-Rasset were both legal victories for the record industry that resulted in a ton of bad press, especially when the high damages were awarded in both cases.
Sometimes winning in court can be a pyrrhic victory, especially if your name, reputation and/or business are so badly tarnished as that you lose far more than you gain.
Unfortunately though, this court of public opinion doesn’t play by clearly-defined rules the way a court of law does. It’s a fickle beast, often picking and choosing what cases it supports at near-random, and is prone to misinformation and knee-jerk reactions.
While it can be an arbiter of real justice when the courts fail to play that role, it can also be misled and misused, making it risky to court.
While it would be nice if the courts were perfect and we could handle every dispute quickly, fairly and without consideration of outside factors, the truth is those factors do get in the way of justice every day and there’s not much that can be done about it.
The best thing you can do as a blogger is to understand the realities of the law, both online and off, and do your best to work within those limitations.
While it may mean biting your tongue on some injustices and not fighting every battle you want, there are still ways you can resolve most disputes. If anything, this is a good reason to try working with people to resolve conflict and not escalate them.
After all, when a dispute gets so far out of hand to require litigation, no one really wins, even if it is eventually resolved.
Jonathan Bailey founded and continues to write at Plagiarism Today, a site about content theft and copyright issues on the internet. He also manages CopyByte, a company that protects online content, and writes a regular column for BloggingPro.