Richard Abanes, in his ‘final’ missive regarding Ken’s Silva’s allegedly libelous article, emphatically claims that Ken Silva broke Federal Law by publishing the complaint email that Abanes sent to iPower.

Said Abanes:

“The form-mail template that I sent to IPOWER has never caused a problem—that is, until Ken Silva decided to blow it up into an issue of astronomical proportions by illegally pasting that PRIVATE email to IPOWER online in violation of federal copyright/privacy laws. 

Why is no one complaining about him? 

Let me reiterate that point, Ken Silva violated federal copyright/privacy laws by publicly posting my PRIVATE email to IPOWER, which in turn has cause no small amount of confusion and animosity.
Abanes is alleging in no uncertain terms that Ken Silva “violated federal copyright/privacy laws by publicly posting” his private email.

Is it true that Ken Silva broke Federal Law? Is this issue as cut and dried as Abanes would lead you to believe?

Well, I spent some time on the phone with an Intellectual Property attorney discussing this issue and it is not even remotely as simple as Richard Abanes makes it out to be. In fact, this is a hotly debated legal topic and the answer that you get to this question will depend largely on who you ask.

Yes, you read that right. This is not a matter of firmly established Federal law. This is a largely unanswered legal question do to the fact that there are many complex and competing legal considerations and few court precedents.

For instance, Fair Use of Copyrighted Materials is one legal consideration. (Fair Use allows for copyrighted materials to be reproduced for the purpose of news reporting and commentary).

A strong case can be made that Ken’s republishing of Abanes’ email is protected under Fair Use. Although, Ken was one of the parties involved in the dispute, his publishing of Abanes’ email was clearly for news and commentary purposes and those uses are protected under Fair Use. This was clearly an important news story because Ken’s right to Freedom of Speech was being threatened by an email that contained unsubstantiated allegations of libel.

Another legal consideration is what attorneys refer to as a ‘reasonable expectation of privacy’. Many people mistakenly believe that if they tag an email with a privacy or copyright clause that automatically creates a reasonable expectation of privacy. But again this is not always the case and much of the legal debate has centered on business emails and what should be considered a ‘reasonable expectation of privacy’. Fact is, the jury is still out on this issue and many intellectual property attorneys are awaiting clarification from the courts in the form of precedent setting case law.

Please, also note that Richard Abanes does NOT cite Federal Law and specific legal code in making his claim that Ken Silva broke Federal Law. Instead, Abanes cites the opinion of a law professor from the University of Arkansas and the Net Manners website. This is a far cry from citing established case law or a specific paragraph from the US Legal Code. Another fact that should not be ignored is that Abanes ONLY cited sources from one side of the current legal debate on the email privacy issue.

In reality this incident has many legal complexities and many competing Constitutional considerations. Therefore, it is NOT an established fact that Ken Silva violated Federal Law.

On the one hand, Richard Abanes is claiming that his Constitutional rights to Privacy and Copyright were infringed upon when Ken Silva published Abanes’ complaint email.

On the other hand, Ken Silva’s rights to Freedom of Speech, Due Process, Fair Use, and years worth of Intellectual Property to which Ken rightfully owned the copyright were undeniably threatened by Abanes’ email which contained unsubstantiated claims of libel. Furthermore, Ken was given no recourse by iPower for defending himself against Abanes’ unsubstantiated claims. He was only told that he had to remove the article within 48 hours or his entire site would be pulled down.

Did Ken Silva break Federal Law by publishing Richard Abanes’ complaint email to iPower? When you consider all the legal complexities and competing Constitutional rights of this particular case the answer is not as simple as Richard Abanes would lead you to believe. It depends on who you ask because the laws and case laws are not clear on this issue. As a result, there are expert legal minds who have taken opposing views on this issue.