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From: wcn@max.u.washington.edu (W C Newell Jr)
Newsgroups: news.admin,misc.legal
Subject: Re: Usenet and legal liability
Message-ID: <10771@max.u.washington.edu>
Date: 21 Nov 89 06:19:25 GMT
References: <25683CAB.25106@ateng.com>
Organization: University of Washington, Seattle WA
Lines: 86

In article <25683CAB.25106@ateng.com>, chip@ateng.com (Chip Salzenberg) writes:
> A long time ago, I wrote:
>>As long as Usenet does not exist legally as a single
>>entity, it cannot be attacked by legal means.
 
And I'll say it again: it >can< be attacked, because corporate entities already
exist to manage the major components of the Internet, never mind the fact that
major institutions, such as this University, are now active participants.
 
> This article consists of my notes of a conversation with our company lawyer.
 
I am not a lawyer, but the following summarizes what my lawyer-type friends
have said to me on this subject, with emphasis on how it differs from the legal
opinions you cite.
 
>   1.  Suits are expensive.  Sue someone, and you can expect to pay $10,000
>       in legal fees.  Thus, any kind of legal action is often waylaid at the
>       pocketbook.
 
It goes without saying that an attorney must believe your case has merit before
he/she will agree to take it on.  Some will accept libel cases based on a
percentage of the award, if any.  The first big Internet libel case will
probably work like this, with a lot of attendant media publicity.
 
>   2.  Any libel or copyright infringment suit would have to prove
>       authorship.  Given the insecure nature of UUCP and NNTP, such proof is
>       impossible.  That's right, impossible.  So unless you are foolish
>       enough to claim in writing or in person that you authored a
>       controversial article, you probably cannot be sued successfully.  And
>       if you do claim such a thing, it's not really your Usenet article that
>       got you in trouble.
 
It is not clear whether a newsgroup is to be considered a "publishing medium"
in the legal sense.  If we assume for the sake of argument that it is, then the
offended party can sue the institution, as the article's publisher, rather than
the alleged author.  Transport level security holes aside, it's still possible
to prove distribution, so this University, for example, could be held liable.
 
Furthermore, an individual can't wait until a libel suit goes to trial before
shouting "forgery".  A bogus article must be disclaimed at first opportunity,
otherwise authorship may be implicitly assumed.
 
>   3.  In matters of libel, truth is always an absolute defense.
 
The corrolary to this is that if a person's good name and reputation is ruined
by false statements in a Usenet article, then >someone< is liable.  The courts
will not bless the computer networks as being above the law and able to get
away with things that defy common sense, just because the technology is new.
 
>   4.  Posting to Usenet consititutes publication.
 
Same as item 2.
 
>   5.  Sites that carry a newsgroup would probably be in a situation similar
>       to supermarkets that carry the National Enquirer.  The Enquirer losing
>       a hypothetical libel suit doesn't make the supermarkets who carry it
>       liable.  Of course, this is only one possible interpretation.
 
You got this analogy from a lawyer?  The supermarket has no role in reviewing
the contents of the Enquirer; the magazine's publisher is clearly identified on
the editorial page (as required by law).  The sites have a major role in
reviewing and filtering newsgroup content, and assume status of co-publisher by
default.
 
>   6.  The less policy a company has about Usenet, the more protected it is
>       from possible legal attack.
 
The correct legal term escapes me, but there exists the concept of "marketplace
consensus".  If your company does not have a policy, the court may assume that
you implicitly abide by the policies of other sites, if a consensus exists.  If
the federal government has a policy, then that's the consensus.  In the absence
of a consensus, the court's actions are unpredictable.
 
>   7.  A hypothetical Usenet Inc. would be a suit magnet.
 
Maybe, but it would shield the individual sites from liability.  An umbrella
organization can benefit from economies of scale when budgeting legal costs.
Of course, if you believe no one will ever be sued over a Usenet article, then
this is a moot point.
 
Disclaimer reprise: I am not a lawyer.
 
Bill Newell
Systems Analyst, Applications Consulting Group
University of Washington
WCN@MAX.U.WASHINGTON.EDU