Xref: utzoo news.admin:7783 misc.legal:12411
Path: utzoo!attcan!uunet!samsung!caesar.cs.montana.edu!blake!milton!max!wcn
From: wcn@max.u.washington.edu (W C Newell Jr)
Newsgroups: news.admin,misc.legal
Subject: Re: Usenet and legal liability
Message-ID: <10988@max.u.washington.edu>
Date: 25 Nov 89 03:12:45 GMT
References: <25683CAB.25106@ateng.com> <10771@max.u.washington.edu> <256C5DB1.683@ateng.com>
Organization: University of Washington, Seattle WA
Lines: 205

More multiple overlapping responses:
 
------
From: chip@ateng.com (Chip Salzenberg)
 
> 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.
 
It makes a big difference, because libel and slander are themselves completely
different things.  I am not qualified to elaborate further.
 
> 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.
 
I agree with all but the last sentence.  Your fall-back argument, that the
defendant can always claim "forgery", doesn't wash.  If I forge an article
under your ID which libels Brad Templeton, are you really going to wait until
he sues you before disclaiming it???  No, I think you'd speak up right away and
ask other admins to pull the offending article.
 
"Absence of malice" protects you from having to clear each article before it's
posted, but if I complain about something with my name in it and you let it
stand, then you are accountable for that decision.
 
> How do you _prove_ distribution?  The Path: header can lie, you know.  And
> articles can be forged locally.  (Yes, at _your_ site.)
 
If the exact same article appears at sites A, B and C, then some transport
agent was used to distribute it.  Of course, you may argue that the article was
simultaneously forged at each Internet backbone site, in which case I would
consider this discussion closed.
 
> [...]  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.
 
If a publisher is explicitly identified, then the distribution agent is
protected from liability.  Conversely, if no publisher is identified, the
distributor assumes legal responsibility for publication.  This is why
magazines are required by federal law to announce their ownership, business
address and related information at regular intervals, otherwise the USPS will
not deliver them and newsagents (read: supermarket) will not sell them.
 
> By the same token, the seller of magazines is not generally liable for the
> content of the magazine.
 
See above.  If the supermarket posts a flyer in the window with no publisher
identified, then they are liable for its contents.
 
>> 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.
 
Get real.  LOTS of sites filter at the group level, for a variety of reasons.
We rarely edit at the article level, but we do look at things on occasion in
response to user complaints.  An article originating from this very site
(entitled "this is fun") was cancelled by one of the net.gods a month or so
ago.  We pulled alt.stupidity because it was (get this) stupid.  I am trying to
get alt.sex.* pulled here as well, on the grounds of "suitability of purpose"
(see below).
 
> 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.
 
Get seriously real.  This university has had an access policy and a student
code of conduct on the books for many years.  We're not about to abandon this
position because some lawyer for a non-academic site says that "less policy =
less liability".  We have standards to maintain, and one way or another we will
achieve that goal.
 
> 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.
 
This part is OK.  We do not screen outgoing articles, but if a student violates
the published code of conduct, then disciplinary action can be taken.  It is my
opinion that having such procedures on the books serves to protect us from
liability, unless we fail to take corrective action in the face of a complaint
and a court holds us to be negligent.  I believe it is a good idea for all
sites to publish their access policies and to document the investigation and
resolution of any complaints.
 
------
From: chip@ateng.com (Chip Salzenberg)
 
>>If anyone has problems with the policies of the NSF or the University of
>>Washington, they don't have to include us in their distribution.
>
> Ha.  Haha.  If your site has a news feed, that means you're getting what you
> asked for.  You can always turn off the feed.  Short of that, there's
> nothing you or anyone else can do to control article content.
 
There is a Distribution: line in the header.  Unfortunately, RFC 1036 chose to
make this line optional, and 95% of the articles we receive don't use it.
Things would improve considerably if there was a distinction between "edu" and
"non-edu" distributions.
 
------
From: brad@looking.on.ca (Brad Templeton)
 
> Cutting groups to save money, if that's clearly the reason, is never
> a problem.   Cutting groups for *moral* reasons is a mistake.  If
> you ban alt.sex for moral reasons, then you have put yourself in the
> postition of moral judge of your newsfeed.
 
There is a third fundamental reason for pulling a group, namely "suitability of
purpose".  Academic sites cater to academic users, and there is a pedagogical
advantage to presenting Usenet as an information database to be used as an
instructional and research tool, much as the library is used.  Some groups,
e.g. alt.sex.*, are inconsistent with that aim.  The library is not making any
moral judgements by declining to buy pornographic literature and place it on
the shelves; the same principle applies to decisions made on whether to carry
certain newsgroups.
 
I am puzzled by the fact that so few people in the audience seem to undersand
this...
 
> This hit the president of the University of Waterloo after he banned
> rec.humor.funny.  He was then pushed to ban a beauty pageant that rented
> space each year in the theatre, as it was viewed as sexist by various groups.
>
> Before, he could have said that it wasn't the University's business to
> judge the morals of productions in the theatre.  But after banning the jokes,
> nobody believed that stance.
 
However, he could have banned rec.* and said it was because the rec groups are
non-academic and thus not an appropriate use of University resources.  This
does not express any moral judgement; it stays within the realm of "suitability
of purpose".  He could even delegate the decision-making authority to someone
else, e.g. a library administrator, who could pull RHF without comment and
there would be no basis for an appeal on moral grounds.
 
> This is the stance I take in rec.humor.funny.  I never block material for
> offensive content.  If I did, and something I did let through offended
> somebody (as always happens) then they *could* blame me as well as the
> author for the offensiveness.
 
So don't say anything about morals when editing.  Say that you edit based on
"personal judgement" and that the result is available on a take-it-or-leave-it
basis.  If some sites think RHF has too much "offensive" material, then another
moderator can always propose rec.humor.safe and give people a choice.
 
------
From: brad@looking.on.ca (Brad Templeton)
 
> So if you were the judge, and I only claimed a forgery months after the
> fact, when the suit started, what would you rule?  Remember, in civil
> law, there is no concept of "proof beyond a reasonable doubt."  That's
> a criminal law concept.   In civil law, there just has to be a
> preponderance of evidence for the plaintif's case.
 
Exactly.
 
> The deep-pocket concept scares me, too.   Right now, USENET does not
> contain much in the way of people who want to run out and sue, in spite
> of what some people think.  How many *actual suits* have been served?
> We know none have gone to court.   A suit would destroy portions of
> the net, although not all, and for now most people seem to realize that
> bringing a suit would not be in their best interests.
 
The case I'm most worried about is the premeditated attempt to discredit an
individual, say some occasionally vocal site admin, because someone else has an
axe to grind.  I care about my good name and reputation, and if someone
launched an active campaign against me, then I would complain to other site
admins, and if no action was taken, legal options would be considered.  Sooner
or later some visible net.person is going to be victimized and this scenario
will be played out.
 
------
From: ed@uunet!dtgcube (Edward Jung)
 
> OK, guys, now you're in trouble.  I have been secretly culling the entire
> transcript of this thread and have sold it for lucrative profit to the
> producers of L.A. Law.  You guys don't get a penny.
 
LA Law is for status-symbol freaks and metapsychology weenies.  I'm holding out
for a guest shot on 60 Minutes.
 
------
Bill Newell
Systems Analyst, Applications Consulting Group
University of Washington
WCN@MAX.U.WASHINGTON.EDU