Xref: utzoo news.admin:7763 misc.legal:12402 Path: utzoo!attcan!utgpu!jarvis.csri.toronto.edu!mailrus!uunet!ateng!chip From: chip@ateng.com (Chip Salzenberg) Newsgroups: news.admin,misc.legal Subject: Re: Usenet and legal liability Message-ID: <256C5DB1.683@ateng.com> Date: 23 Nov 89 21:14:24 GMT References: <25683CAB.25106@ateng.com> <10771@max.u.washington.edu> Organization: A T Engineering, Tampa, FL Lines: 138 Further non-laywer notes of conversation with a laywer follow. IMHO, UUNET's official answer of "nobody knows" is probably to be believed; but there are some interesting details to discuss... According to Bill Newell: > 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. Yes, there are lawyers who will accept contingency fees. The cost of litigation goes far beyond what you pay your lawyer. It includes travel expense, time off from work, communication costs, research costs, etc., all extending over a period of _years_. It is a common misconception that the loser in court always pays the legal costs of the winner. > It is not clear whether a newsgroup is to be considered a "publishing > medium" in the legal sense. It seems we need to clarify terms. In cases of libel and slander, to meet the requirement of "publication", the statement must be communicated to a third party -- i.e., not the speaker and not the person libeled/slandered. This consitutes "publication". The idea of "publishing medium" simply doesn't enter into the matter at all. To prove slander/libel you must show that the defendent made the statement, that it was published (communicated to a third person), that it was false, and (in some states) that specific quantifiable damages resulted. (In suits against the press, you must also prove malice and/or (I think) extreme negligence.) The first part alone is a big hindrance. > Transport level security holes aside, it's still possible to prove > distribution, so this University, for example, could be held liable. How do you _prove_ distribution? The Path: header can lie, you know. And articles can be forged locally. (Yes, at _your_ site.) > 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. Ha. Show any jury the sheer quantity of material that goes across the Usenet and the unreliability of transport, and the "you must have seen it, why didn't you disclaim it" attack will be seen as bogus. Which it is. > If a person's good name and reputation is ruined by false statements in a > Usenet article, then >someone< is liable. "Lawyers don't sue people, people sue people." The person who erred is the person who made the false statement; this is the person who should be held responsible. We all apparently acknowledge that proof of authorship on the Usenet would be exceedingly difficult. Faced with this fact, Mr. Newell takes the position that, "then >someone< is liable" (emphasis in original). Unfortunately, most people then look for the deep pocket and attempt to impute legal liability. Thus we should avoid creating suit magnets. > 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). Again, let's define terms. As the question was originally put to me, we were discussing the issue of legal publication and the Usenet was being discussed as a means of _receiving_ information. In that context, could an employer who provides employees with access to the Usenet be held liable for publication? I don't think so. The same employer provides books, magazines, journals, telefaxes, incoming telephone calls, etc., to the employees and is not liable for publishing -- communicating -- the contents of those items. The Usenet is similar. By the same token, the seller of magazines is not generally liable for the content of the magazine. > The sites have a major role in reviewing and filtering newsgroup > content, and assume status of co-publisher by default. Who is "reviewing and filtering"? I've heard of no one doing this. Certainly no one at my site is filtering anything, at least not on an article level. > > 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 an employer articulates policies and procedures for the regulation of employee behavior in a certain area, then that employer has arguably assumed responsibility for behavior in that area. Case precedent has in many instances started with such voluntarily accepted responsiblity and imputed legal liability. It would seem that for _outgoing_ messages, the Usenet is similar to the telephone except that it _can_ permit an employer to screen outgoing messages before they are communicated to an outside party. Existing employer policies and procedures concerning the use of the Usenet raise the question of employer methods of enforcement of those policies and procedures. This is where a jury might possibly make the leap from voluntarily accepted responsiblity to imputed legal liability. An employer's potential liability would be most extreme if the employer's policies and procedures specifically required screening of all entries prior to posting. (Remember, though, that the reading of a message for screening purposes constitutes legal publication -- it need not be propagated further.) Note that this potential liability would exist for other forms of communication that are as a matter of policy screened by the employer, such as letters, memos, etc. To the extent that an employer has simplistic policies seeking to limit personal use on the telephone, similar policies could be implemented concerning personal use of the Usenet. If the policy stated that enforcement is by methods other than screening the content of the messages, this may lessen liability exposure. Generally, an employer is not liable for the content of of employee telephone calls unless the content is as specifically and provably instructed by the employer or (in some instances) the calls are continued in spite of employer knowledge of the content of the call. An example fitting both these situations would be harrassing or threatening collection calls. > > 7. A hypothetical Usenet Inc. would be a suit magnet. > > Maybe, but it would shield the individual sites from liability. If we have a plaintiff without the money to finance the suit and a lawyer working on a contingency fee, the "suit magnet" would be the entity with the deep pocket or with the most comprehensive insurance coverage. Building a large "war chest" to deal with suits just begs someone to go for it. What do this insurance companies have to say on these matters? Do policies now contain specific limitations to coverage of losses based on publication via the Usenet? I'd like to know... Final disclaimer: I'm not a laywer, nor do I play one on TV. -- You may redistribute this article only to those who may freely do likewise. Chip Salzenberg at A T Engineering; or "Did I ever tell you the Jim Gladding story about the binoculars?"