Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 47

provides for its customers. Generally, the ISPs
are being sued for the wrong or damage done by
others because it is hard to sue someone whose
whereabouts in unreachable. The clients who post
infringing materials may be mobile or otherwise,
are difficult to track down. Therefore, the victims
have the tendency of initiating legal action against
the ISPs, as many ISPs are corporate entities with
fixed places of business. In addition, the third party
who posted the infringing or negligent materials
online may be lacking financial resources to pay
a substantial liability judgement. Therefore, the
attention is shifted from the individual clients
who had wronged to ISPs who have financial
capacity to bear financial liabilities, as they are
well qualified as deep pockets.
In case of release of computer viruses like
Melissa, ILOVEYOU, the question is can the ISP
be held liable for the damage caused by the viruses
as it had facilitated the communication of viruses?
To date, it seems that applying negligence tort to
virus caused damage has been difficult because
it is not clear who should be held liable for the
damage. Proving causation is also very difficult.
In addition the damage caused by the viruses is
huge. For instance, the ILOVEYOU virus had
caused damage worth $10 billion around globe.
Similarly in August 7, 1996 there was an online
crash at American Online (AOL) (New York
Times, 1996). Thousands of companies were left
without e-mail capabilities and a host of other ser-
vices. Many lost thousands of dollars as a result.
Should this economic loss be recoverable by AOL
users? In deciding the negligent liability the court
would need to look at the question of who is most
capable of taking effective precautions to prevent
the attacks. It is most likely that the courts will
impose liability on those who are most capable of
taking effective precautions if they fail to do so. In
the event that the ISP is going to be held liable for
such an extensive liability they will go bankrupt
(Miller, & Jents, 2002). Therefore, there is a high
chance that the court for policy consideration may
exempt the liability from negligent liability and the
victimised consumers may not be able to recover

any loss caused. If it is proven that the medical
institution was acting as ISP, the institution can
be held liable for not taking adequate measure.
However, there is a possibility that the ISP as
publisher of negligent statement may be held re-
sponsible if a reader of its publication is seriously
injured, died or suffered damage to his personal
property after acting upon or using the content
contained in the materials posted in its server. The
publisher of Soldier of Fortune magazine was held
liable for the death caused by a “hit man” following
the magazine's publication of an advertisement
for a professional mercenary, styled as a “gun
for hire” (Rich, n.d.). The publisher ISP is duty
bound to provide adequate instructions, advice
or warning if the publication contains inherently
danger, and the reader by using or acting upon
the information got injured or harmed or died.
However, the ISP can escape liability if it is
proven that the ISP had an editor experienced
in dealing with negligent publication conducted
an independent review of the contents of the
publication or included adequate warning to the
reader with regard to the content of the publica-
tion. The warning must advise the reader that his
or her failure to follow instruction is dangerous
or includes potential risks. They may show that
the warning given is specific and it was placed in
the margin or apparent places of that section with
an appropriate symbol to make the reader aware
that this section contains information that could
cause serious injury or death.
Negligence tort has provided an avenue for the
e-health system users to bring an action against
a manufacturer or service provider for damage
suffered by him due to his defective products or
design or services or wrongful advice. However,
there are a number of problems in making full
use of this remedy. The very basic problem of
negligence tort is due to complex in procedural
and evidential issues (Rachagan, 1992). Without
knowledge of industry practice and technology, it
will be difficult to prove exactly which particular
act or omission owed caused injury. The negligence
tort only provides benefit to the e-health system