Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Path: utzoo!mnetor!uunet!seismo!lll-tis!mcb From: mcb@lll-tis.arpa (Michael C. Berch) Newsgroups: news.admin,misc.legal Subject: Re: Mark Ethan Smith: For real? Message-ID: <21748@lll-tis.arpa> Date: Wed, 31-Dec-69 18:59:59 EDT Article-I.D.: lll-tis.21748 Posted: Wed Dec 31 18:59:59 1969 Date-Received: Thu, 8-Oct-87 04:44:58 EDT References: <378d6016.b8ab@apollo.uucp> <5261@jade.BERKELEY.EDU> <2050@kitty.UUCP> <1985@midas.TEK.COM> <2071@kitty.UUCP> <21140@ucbvax.BERKELEY.EDU> Reply-To: mcb@lll-tis.arpa (Michael C. Berch) Organization: Lawrence Livermore National Laboratory, Livermore CA Lines: 99 Summary: Site liability for defamation Xref: mnetor news.admin:1103 misc.legal:2982 In article <21140@ucbvax.BERKELEY.EDU> jwl@ernie.Berkeley.EDU.UUCP (James Wilbur Lewis) writes: > I think what we need here is a good dose of *informed* opinion. Any of > the lawyers out there (mcb?) willing to comment? Be glad to. After reading the whole exchange, which is simply the latest go-round on this perennial Usenet issue, I'm still not certain exactly what it is that Mr. Lippman is trying to say. All I get from his three latest articles is sort of a generalized alarm about site liability, based on a theory of "publication" by the site. In article <2071@kitty.UUCP> larry@kitty.UUCP (Larry Lippman) writes: > > ... > > The Big Electric Cat is a public access unix system, and has a notice > > posted publicly that it is in no way responsible for any postings by > > users of the system. > > I hate to shatter your naivete, Ms. Chipman, but not only do sites > have liability for the actions of their users, but disclaimers such as the > above on a public access unix system are worthless. > [...] > An author of a Usenet articles does not distribute (or in effect > publish) the article; the Usenet SITE distributes (or in effect publishes) > the article. To quote from "Mass Communication Law" by Gillmor and Barron, > "Actionable libel requires (1) defamation, (2) identification, and (3) > publication". In the case of Usenet, only the SITE "publishes", not the > author. This is certainly a theory held by many people; I certainly would not consider it the state of the law and assert it, as Mr. Lippman does, as fact. Remember that the word "publication" in defamation law, as in copyright law, is a "term of art"; that is, it has a special legal meaning that might be similar to, but not identical to, common usage. In both defamation and copyright law there are instances of copying and distributing a work that any normal person would consider "publication", but do not legally consitute "publication". So we cannot look simply to the common meaning of "publication" to determine if a Usenet site "publishes". There is certainly the issue of approval and control, which would exist in the normal print or broadcast publication process but is not present in Usenet because of the way the software works. Ultimately, it is a public policy issue, and it has not been widely litigated. There has been some criminal jurisprudence regarding the liability of BBS sysops for the distribution of illegally-obtained information like credit card numbers, but no strong appellate rule has emerged. The effect of disclaimers has not been tested at all, to my knowledge, and allusion to statutes that make certain disclaimers inoperative is interesting, but not necessarily a good statement of the law. I would consider the entire field an open issue... > Now, I have gone into considerable detail here and in recent > previous articles because I am trying to convey an important message to > system administrators: > > 1. Your site and your organization IS responsible for Usenet articles > (and any consequential damages resulting therefrom) that your users > post. You do agree, do you not, that your site has a problem if > users start posting the contents of say, /usr/src/uts/vax/? Well, > I am trying to point out something that could be just as serious, > but may not be quite as obvious. The example of institutional liability for disclosure of proprietary material is not remotely analogous; in that case the institution has agreed to protect the material according to certain standards. No institution , to my knowledge, has engaged to be responsible for its users' Usenet articles, and organizational liability based on publisher status remains a theory, not law. It may turn out to be a valid theory, or it may not. It may turn out that prominent disclaimers will effectively prevent liability, or it may not. Certainly admins should be aware of the potential for liability, but I do not see a reason for self-censorship. Quite frankly, I'm still not sure what the shouting is about in the present case. This cort of case seems to come up every years or so. The first time I came across Matthew Wiener was some time back when he wanted to sue Rich Rosen for defamation, and I posted a couple of articles to try to get him (and others who were beginning to get hot under the collar) to cool down. As for the Smith/Lippman business, I find it difficult to follow either Mr. Lippman's argument that he was defamed, or that there should be some formal mechanism of "identifying" Usenet users, a process that I find dubious in theory and impossible in practice. Many sites have a policy that they will not provide personal information about their users, for employment reasons or simply for purposes of privacy. Under what doctrine Mr. Lippman proposes that they do so, I am unable to ascertain. The fact that "Mark Ethan Smith" is in fact not a pseudonym and can easily be located by any number of people lends no support to Mr. Lippman's theory. Personally, I find it difficult to defend anything that Mark Ethan Smith does; the last time I did so, she managed to flame me for some unrelated foolishness about "diminutive pronouns". Frankly, I have better things to do. But the legal issues are, I think, worth examining. Michael C. Berch Member of the California Bar ARPA: mcb@lll-tis.arpa UUCP: {ames,ihnp4,lll-crg,lll-lcc,mordor}!lll-tis!mcb