Safe harbor (law)

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A safe harbor is a provision of a statute or a regulation that specifies that certain conduct will be deemed not to violate a given rule. It is usually found in connection with a more-vague, overall standard. By contrast, "unsafe harbors" describe conduct that will be deemed to violate the rule.

Contents

For example, in the context of a statute that requires drivers to "not drive recklessly", a clause specifying that "driving under 25 miles per hour will be conclusively deemed not to constitute reckless driving" is a "safe harbor". Likewise, a clause saying that "driving over 90 miles per hour will be conclusively deemed to constitute reckless driving" would be an "unsafe harbor". In this example, driving between 25 miles per hour and 90 miles per hour would fall outside of either a safe harbor or an unsafe harbor, and would thus be left to be judged according to the vague "reckless" standard.

Theoretical justifications

Safe harbors have been promoted by legal writers as reducing the uncertainty created by simply employing a vague standard (such as "recklessness"). [1] On the other hand, this type of rule formulation also avoids the problem of creating a precise rule that leaves a judge with no available discretion to allow for "hard cases". [2] : 14–21  In theory, the safe harbor formulation can combine the virtues of vague standards and precise rules, allowing legislatures to prescribe with certainty the advance outcome for specific foreseeable cases, and to leave to judges to decide the cases that remain. [2] : 16–18 

Criticisms

Safe harbors can create precise rules that will be applied in unintended ways. For example, driving under 25 miles per hour in a 60 MPH zone when not required by traffic or other conditions could be reckless driving.

United States

Safe harbor provisions appear in a number of laws and in many contracts. An example of safe harbor in a real estate transaction is the performance of a Phase I Environmental Site Assessment by a property purchaser: creating a "safe harbor" protecting the new owner if, in the future, contamination caused by a prior owner is found. Another common use of safe harbor is to protect management of a corporation from liability for making financial projections and forecasts in good faith. [3]

The Digital Millennium Copyright Act (DMCA) has notable safe-harbor provisions which protect Internet service providers from the consequences of their users' actions. (Similarly, the EU directive on electronic commerce provides a similar provision of "mere conduit" which, while not exactly the same, serves much the same function as the DMCA safe harbor in this instance.)

In the context of the environmental protection, a voluntary safe harbor agreement can be undertaken between property owners and the United States Fish and Wildlife Service (FWS) or the National Oceanic and Atmospheric Administration (NOAA) under which a property owner undertakes actions that protect and aid the recovery an endangered species protected under the Endangered Species Act with habitat on their property. In exchange, the FWS or NOAA promises not to require any additional or different conservation activities on the property without the property holder's consent. When the agreement expires, the property owner is permitted to return the landscape to its original baseline condition if they so desire. [4]

Safe harbor laws are being used across the United States to address how children are treated when they become victims of human trafficking and commercial sexual exploitation of children (CSEC). These laws are being used in New York, Florida and 20 other states (as of 2014) to "address the inconsistent treatment" that children receive after they are exploited sexually. The laws are used to ensure exploited children are treated as "victims", not as "criminals". [5]

European Union

There is an example of a safe harbor decision in reference to the EU Data Protection Directive. The Directive sets comparatively strict privacy protections for EU citizens. It prohibits European firms from transferring personal data to overseas jurisdictions with weaker privacy laws. Five years later, a decision created exceptions where foreign recipients of the data voluntarily agreed to meet EU standards under the International Safe Harbor Privacy Principles. In October 2015, following a court decision by the Court of Justice of the European Union, the safe harbor agreement between the EU and US was declared invalid on the grounds that the US was not supplying an equally adequate level of protection against surveillance for data being transferred there.

Australia

Safe harbor legislation passed in September 2017, protect company directors from personal liability for insolvent trading if they take action likely to lead to a better outcome for the company and its creditors. [6]

India

In the context of The Income-tax Act, 1961, safe harbor rules refer to the determination of income deemed to accrue or arise in India under section 9(1)(i) of the Act, and the calculation of arm's length price under section 92C and 92CA of the Act. [7] These rules provide guidelines under which tax authorities shall accept the transfer price or income declared by the assessee, on a presumptive tax basis. Multinational companies having international transactions with their group companies, declaring certain minimum operational profits, are not made subject to rigorous transfer pricing audits. [8]

In the context of Information Technology Act, 2000, a safe harbor provision may refer to section 79 of the Act, that exempts online platforms from any legal liability for third-party content generated by its users and hosted by the platform, subject to several conditions. [9] [10]

See also

Related Research Articles

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Information privacy is the relationship between the collection and dissemination of data, technology, the public expectation of privacy, contextual information norms, and the legal and political issues surrounding them. It is also known as data privacy or data protection.

<span class="mw-page-title-main">Data Protection Directive</span> EU directive on the processing of personal data

The Data Protection Directive, officially Directive 95/46/EC, enacted in October 1995, was a European Union directive which regulated the processing of personal data within the European Union (EU) and the free movement of such data. The Data Protection Directive was an important component of EU privacy and human rights law.

<span class="mw-page-title-main">Shell corporation</span> Company with few, if any, actual assets or operations

A shell corporation is a company or corporation with no significant assets or operations often formed to obtain financing before beginning business. Shell companies were primarily vehicles for lawfully hiding the identity of their beneficial owners, and this is still the defining feature of shell companies due to the loopholes in the global corporate transparency initiatives. It may hold passive investments or be the registered owner of assets, such as intellectual property, or ships. Shell companies may be registered to the address of a company that provides a service setting up shell companies, and which may act as the agent for receipt of legal correspondence. The company may serve as a vehicle for business transactions without itself having any significant assets or operations.

A privacy policy is a statement or legal document that discloses some or all of the ways a party gathers, uses, discloses, and manages a customer or client's data. Personal information can be anything that can be used to identify an individual, not limited to the person's name, address, date of birth, marital status, contact information, ID issue, and expiry date, financial records, credit information, medical history, where one travels, and intentions to acquire goods and services. In the case of a business, it is often a statement that declares a party's policy on how it collects, stores, and releases personal information it collects. It informs the client what specific information is collected, and whether it is kept confidential, shared with partners, or sold to other firms or enterprises. Privacy policies typically represent a broader, more generalized treatment, as opposed to data use statements, which tend to be more detailed and specific.

A safe harbor or harbour is literally a "place of shelter and safety, esp. for ships". It is used in many contexts:

Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents, but for matters relating to copyright, this has solely been a product of case law developments. In other words, courts, rather than Congress, have been the primary developers of theories and policies concerning secondary liability.

Information privacy, data privacy or data protection laws provide a legal framework on how to obtain, use and store data of natural persons. The various laws around the world describe the rights of natural persons to control who is using its data. This includes usually the right to get details on which data is stored, for what purpose and to request the deletion in case the purpose is not given anymore.

The International Safe Harbor Privacy Principles or Safe Harbour Privacy Principles were principles developed between 1998 and 2000 in order to prevent private organizations within the European Union or United States which store customer data from accidentally disclosing or losing personal information. They were overturned on October 6, 2015, by the European Court of Justice (ECJ), which enabled some US companies to comply with privacy laws protecting European Union and Swiss citizens. US companies storing customer data could self-certify that they adhered to 7 principles, to comply with the EU Data Protection Directive and with Swiss requirements. The US Department of Commerce developed privacy frameworks in conjunction with both the European Union and the Federal Data Protection and Information Commissioner of Switzerland.

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<span class="mw-page-title-main">Electronic Commerce Directive 2000</span> Directive of the European Parliament

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<span class="mw-page-title-main">Online Copyright Infringement Liability Limitation Act</span> 1998 U.S. federal law

The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP), a group which includes Internet service providers (ISP) and other Internet intermediaries, by shielding them for their own acts of direct copyright infringement as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

Information technology law, also known as information, communication and technology law or cyberlaw, concerns the juridical regulation of information technology, its possibilities and the consequences of its use, including computing, software coding, artificial intelligence, the internet and virtual worlds. The ICT field of law comprises elements of various branches of law, originating under various acts or statutes of parliaments, the common and continental law and international law. Some important areas it covers are information and data, communication, and information technology, both software and hardware and technical communications technology, including coding and protocols.

<span class="mw-page-title-main">Digital Millennium Copyright Act</span> United States copyright law

The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users.

<i>Perfect 10, Inc. v. CCBill, LLC</i>

Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, is a U.S. court case between a publisher of an adult entertainment magazine and the webhosting, connectivity, and payment service companies. The plaintiff Perfect 10 asserted that defendants CCBill and CWIE violated copyright, trademark, and state law violation of right of publicity laws, unfair competition, false and misleading advertising by providing services to websites that posted images stolen from Perfect 10's magazine and website. Defendants sought to invoke statutory safe harbor exemptions from copyright infringement liability under the Digital Millennium Copyright Act, 17 U.S.C. § 512, and from liability for state law unfair competition, false advertising claims and right of publicity based on Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1).

Notice and take down is a process operated by online hosts in response to court orders or allegations that content is illegal. Content is removed by the host following notice. Notice and take down is widely operated in relation to copyright infringement, as well as for libel and other illegal content. In United States and European Union law, notice and takedown is mandated as part of limited liability, or safe harbour, provisions for online hosts. As a condition for limited liability online hosts must expeditiously remove or disable access to content they host when they are notified of the alleged illegality.

<i>Viacom International Inc. v. YouTube, Inc.</i> U.S. copyright court case

Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19, was a United States Court of Appeals for the Second Circuit decision regarding liability for copyright infringement committed by the users of an online video hosting platform.

<i>Columbia Pictures Industries, Inc. v. Fung</i>

Columbia Pictures Industries, Inc. v. Fung 710 F.3d 1020 No. 10-55946, was a United States Court of Appeals for the Ninth Circuit case in which seven film studios including Columbia Pictures Industries, Inc., Disney and Twentieth Century Fox sued Gary Fung, the owner of isoHunt Web Technologies, Inc., for contributory infringement of their copyrighted works. The panel affirmed in part and vacated in part the decision of United States District Court for the Central District of California that the services and websites offered by isoHunt Web Technologies allowed third parties to download infringing copies of Columbia's works. Ultimately, Fung had "red flag knowledge" of the infringing activity on his systems, and therefore IsoHunt was held ineligible for the Digital Millennium Copyright Act § 512(c) safe harbor.

Contributory copyright infringement is a way of imposing secondary liability for infringement of a copyright. It is a means by which a person may be held liable for copyright infringement even though he or she did not directly engage in the infringing activity. It is one of the two forms of secondary liability apart from vicarious liability. Contributory infringement is understood to be a form of infringement in which a person is not directly violating a copyright but induces or authorizes another person to directly infringe the copyright.

References

  1. ↑ Swire, Peter (1993), "Safe Harbors and a Proposal to Improve the Community Reinvestment Act", Virginia Law Review , vol. 79, no. 349
  2. 1 2 Stumpff, Andrew Morrison (July 18, 2013), Case Law, Systematic Law, and a Very Modest Suggestion, doi:10.2139/ssrn.2295245, SSRN   2295245
  3. ↑ "What Is a Safe Harbor? Types, and How They Are Used". Investopedia. Retrieved August 8, 2024.
  4. ↑ "Safe Harbor Agreements for Private Landowners" (PDF). U.S. Fish and Wildlife Service. July 2011. Retrieved February 27, 2017.PD-icon.svg This article incorporates text from this source, which is in the public domain .
  5. ↑ Trudy Novicki. "Addressing Human Trafficking – Unifying the Response to Commercial Sexual Exploitation of Children". CSEC Response.
  6. ↑ van der Mye, Stephen (July 10, 2024). "Safe harbour – A shelter from the storm". Bond University. Retrieved August 8, 2024.
  7. ↑ Direct Tax Laws & International Taxation - Module 4 (PDF) (October, 2023 ed.). The Institute of Chartered Accountants of India. p. 24.40. ISBN   978-81-19472-92-5.
  8. ↑ Prasad, Gireesh Chandra (June 8, 2017). "Income tax dept rationalises 'safe harbour' rates for MNCs". Mint (newspaper) . Retrieved August 29, 2017.
  9. ↑ "The Information Technology Act, 2000" (PDF). indiacode.nic.in. p. 30.
  10. ↑ Khan, Khadija (July 10, 2024). "Why has ANI slapped a defamation case against Wikipedia?". The Indian Express . Retrieved October 17, 2024.(subscription required)
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