Note to gossip columnist and bloggers : lessons from the Hulk Hogan sex tape case

Earlier this week, super-star wrestling icon, Hulk Hogan, real name Terry Bollea, was awarded a record $140 million payout in the privacy lawsuit against online gossip media site Gawker. Jurors say they are convinced they made the right decision to award the record damages against Gawker for a breach of Hogan’s right to privacy, by airing a sex tape of Hogan and his best friend’s wife, hoping it will serve as a deterrent to other media companies.

The former professional wrestler was featured in a sexually explicit video where he is shown in a sexual encounter with Heather Clem, the wife of radio personality Bubba the love sponge Clem. Clips of the video were widely circulated online throughout 2012, which lead Bollea to file lawsuits against both the Clems and Gawker Media for violating his privacy. The Jurors had said that the intimate nature of the conversations during the footage had convinced them that Hogan was not

aware he was being filmed and even if he was aware, had not consented to the tape being published. Worse still, the publisher, Nick Denton who is the owner of Gawker showed no remorse during the trial or the reading of the verdict even though the award could render him bankrupt. The jurors held that it is an invasion of privacy to make publicly available a tape of a person having sex without that person’s consent and no right to freedom of expression or the press could justify this.

Even as Gawker’s publication of a Hulk Hogan sex tape raises legal questions and issues of public opinion and morals, it should serve as a reminder and a note of warning to gossip blogs and columns seeking to drive traffic to their blogs by rushing to post unconfirmed news or scandalous stories which do not have the consent of the owners and which violate owner’s privacy. Nigeria may not have all of the privacy laws right now but with the spate of development on the internet, it is no surprise that very soon we would see similar law suits against careless bloggers and columnists. To avoid having such a huge monetary award hanging over your neck in addition to the possibility of going under, make sure you heed the classic clarion call, ‘Before you publish, think!’

How protected am I during an online transaction?

 HOW PROTECTED AM I DURING AN ONLINE TRANSACTION?

As a general rule, contract terms and general conditions must be provided to the recipient in a way that allows them to be stored and reproduced. Despite these provisions, some unfair terms might still creep into the e-commerce terms and conditions. Unfair terms have are terms that have not been individually negotiated and which causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

Most agreements in Nigeria especially banks and even online transactions are standard agreements where the customers have little or no say or little or no bargaining power. Most times the customers agree to these agreements without proper information or after an overload of information, usually in a take-it or leave it approach ie failure to accede to these terms would deny you use of the website. While this is not totally proscribed by law, the law frowns at clauses that put the customer in an unfair position and give the other party a higher bargaining chip.

The EU law and UK law - Unfair Terms in Consumer Contracts Regulations 1999 provides a non-exhaustive list of unfair terms which customers should be wary of. The UK authorities actively prosecute companies whether online or not who flout these terms. Unfortunately, Nigeria has no consumer protection legislation but it would be useful to know some of this information to protect yourself. Some of the unfair terms include terms that:

*allow the supplier the ultimate discretion to cancel and whether to refund payments already made

use legal jargon about the application and validity of the terms, which would not be understood by consumers

*allow the supplier too much discretion about when to terminate and what to charge the consumer, including where the supplier was in breach

*provide the supplier with too wide an exclusion of liability for failure to perform its obligations. The consumer would not know the circumstances in which this could be exercised

*did not address the consequences of the supplier's breach, so potentially gave the supplier the right to cancel without refund.

*Excluding or restricting liability for death or injury

*Excluding or restricting liability for breaches of contract

 *Excluding liability for defective or mis-described goods

* Excluding liability for poor services, or work and material

*Restricting amount or type of liability  for suppliers non-performance or delay

*Binding consumers while allowing suppliers to opt out on a pretext

*Non-return of prepayments on consumer cancellation

*Supplier's right to cancel without notice

*Excessive notice periods for consumer cancellation

*Binding consumers to hidden terms

*Right to change what is supplied  or increase the price

It is important that you check your contracts for any of these terms before you decide to use that online service. Unfortunately, the Consumer Protection Council (CPC) in Nigeria is not as pro-active as the UK consumer protection agency which routinely checks the contracts of e-commerce companies to ensure that they comply. However, the CPC can still be contacted in the event of any unfair terms.

What are the contents of an e-commerce transaction?

E-commerce, though a novel idea in these parts, has come to stay in Nigeria. A lot of Nigerian businesses have gradually begun to establish an online presence in order to increase sales and ensure a more efficient delivery of service. Companies like Facebook make monthly income of millions of dollars. Konga and Jumia, some of the largest online retailers in Nigeria are recording massive sales. It seems to have become an indispensable tool that businesses cannot do without. More businesses are launching online stores while consumers are also increasingly gravitating towards buying goods and services online. Personally, it is sometimes easier and more convenient for me to buy clothes from an online seller or supplier rather than the hassle of going to the market or shops. But despite the convenience and relative cheapness of online trading or shopping, consumers and buyers sometimes do not know their rights as shoppers. Different issues arise when a consumer buys a product and due to one issue or the other tries to return it. Would a customer have a right to cancellation or withdrawal in that instance? Would it apply to all products? What kind of information does the consumer need to know before a purchase?

First, we need to clarify the meaning of an e-commerce transaction? Does it involve the lady who sells pieces of hair extensions to individual customers over a distance without formal terms and conditions on a website either through e-mail or the phone? Or is it restricted to transactions conducted over the internet? Before we set the ball rolling, it is important to know that Nigeria does not have any law regulating e-commerce or business done online. So we would try to show what goes on in other civilized countries which have these laws so we can learn from it. Also, some major e-commerce companies tailor their terms and conditions to fit these laws.

In the EU, e-commerce involves both distance selling contracts and electronic contracts. Distance selling contracts are defined as “any sales or service contract where the trader, for the conclusion of the contract, makes exclusive use of one or more means of distance communication”. This includes mail order, internet, telephone or fax.

Electronic contract is defined as “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”. 

This means that e-commerce would cover your transaction with your favourite shoe or hair extension seller who lives in Abuja and who sends those items to you via bus courier after you have identified what you wanted on BBM or whatsapp or phone calls. It also would cover your favourite online website. Nigeria is yet to have a comprehensive law guaranteeing consumer rights or consumer protection even offline. Online protection is therefore still a tall order and aspiration. However, individuals can have recourse to the EU law to understand what kind of protection they may be entitled to.

 

Some contractual information you need to know-

For electronic contracts i.e online transactions via the internet or electronic platform, there should be a minimum set of information which is clear and unambiguous, supplied to the customer before the order is placed. This includes- 

*The different technical steps to follow to conclude the contract or transaction;

*How the customer can identify and correct errors made before the order is placed. Generally, websites should provide a summary page where the details are shown to the consumer and where the consumer is asked to confirm this is correct before proceeding. If this is not provided and a mistake is made on the order, you have the right to rescind the contract.

*The languages offered for the conclusion of the contract

*You must be able to download or store and reproduce the contract terms and conditions on the online website

*Acknowledgement without delay through electronic means, that the order placed by the customer has been received. This means that as a customer if you place an order on a website, you have the right to receive an acknowledgment about your order from the supplier via the internet usually through e-mail.

*Right to return goods unconditionally within 14 days of delivery as provided by EU consumer laws – This is very important because for most online transactions, it is impossible to properly examine the goods or services before purchase. This is designed to protect the consumer and also to engender consumers trust in online businesses. Note that it doesn’t apply to digital products like music, downloads and software

Note that certain contracts or businesses cannot be done online such as those having to do with land transactions except for rent, contracts that involve judicial approval, contracts involving wills or family law contracts involving suretyship