I think this may be well on its way to being beaten into the ground, but
I feel it's necessary to point out that there's some very suspect legal
reasoning here, presumably generated by speculating from a few
oversimplified principles.
Penn Jennings wrote:
> Lets look at a worst case:
> [facts omitted]
>
> NEGLIGENCE involves carelessness that injures another person. There are 4
> parts to Negligence:
> 1. Duty.
> 2. Breaking a standard of care.
> 3. Proximate Cause
> 4. Damages.
>
> 1. As a list manager you DO HAVE duties and responsibilities. Just ask
> Prodigy. Duties almost always exist where danagers exist.
Vastly oversimplified; you have simply assumed into existence a duty
which is unlikely to actually exist. Yes, a list manager has duties and
responsbilities (especially to the owner of the site, for example), but
I don't know of any theory of law that requires you to act as a
guarantor of the safety of list members against harm from third parties,
except under some very narrow and well-defined conditions.
"Duty", in the law of negligence, is a very specific and technical term.
One rarely owes a special duty of care to someone whom one has not
directly placed at risk, or to whom one does not have a special
relationship (i.e., a fiduciary). For example, in American
jurisprudence, if you pass someone in the street who is bleeding to
death, you cannot be held liable if you simply ignore them and walk on,
so long as it wasn't you who put them at risk in the first place, or
unless you owed them a special duty because of a relationship (your
child, your employee, someone you had agreed to supervise, etc.) That
may sound cold-hearted, but that's tort law. In the exact words of my
Torts professor lo these many years ago, "Never assume the existence of
a duty."
> 2. The standard of care is based on what the ordinary, reasonable and
> prudent person would do. Such a person WOULD take some action against a
> user in the light of multiple complaints from multiple people about the same
> person.
It's unlikely that not doing so is a violation of the standard of care
(even assuming there was a duty of care in the first place). Murders
arising out of e-mail threats are sufficiently uncommon that it is
arguably not unreasonable simply to ignore the threat. Or to analyze it
and come to the conclusion that kicking the person off the list would
make it *more* likely that harm would come to an innocent party.
> 3. Clearly, if you had kicked the vile user off when the problems first
> occurred the murder would not have occurred.
Whoooah there, pardner! That's the greatest leap of faith yet!
Proximate cause (legal cause) is just as tricky as the duty of care, and
you can't just assume that since Y followed X, Y was caused by X. That
would be a *very* tough proof problem.
> 4. The dead person was obviously damaged.
OK, 1 out of 4. :-)
> I'm not an attorney but I will share this with you. My day job is with a 30
> Billion dollar corporation at which I am one of the Webmaster. The legal
> department demanded that we NOT receive email to the Webmaster account.
> Their reason was basically this "Once you are notified of certain types of
> events you have a legal and moral obligation to take action."
Sigh. More lawyers who do not understand the Internet. In a good
company, they are overruled by managers who understand the risks
involved but realize that business considerations often outweigh
legally-valid but implausible worst-case scenarios.
--
Michael C. Berch
Member of the California Bar (and yeah, I did get an "A" in Torts)
mcb@postmodern.com / mcb@greatcircle.com
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