Mitchell Leben wrote:
[snip]
>
> Now he plans to sue me.
As previous responses have suggested, the chances of his actually suing
you are slim to none. However, since I think there are some
theoretically interesting legal questions here, I'll continue point by
point:
> Some clips from one of his emails to me:
>
> "I have saved all the evidence of slander posted from your list-server."
If *you* wrote something about him which was both false and defamatory
and sent it out to the list (or to any third party), he does have a
cause of action for libel. Whether he can prove damages is another
question. I suspect that the law is not clear as to whether you as
list-owner are liable for libelous comments disseminated by others
through your list.
There is a 1970s landmark case here in Wisconsin holding that a
contract printer is not liable for the libelous content of a newspaper
printed there, where the printer had no editorial authority over the
content. (I don't know the extent to which other states have followed
this reasoning; you could be sued in any state where one or more of
your subscribers received e-mail.) And, of course, the phone company
isn't liable for slanderous statements made over its phone lines.
On the other hand, the publisher of a newspaper is potentially liable
for every item in the newspaper, even letters to the editor, because the
publisher does have editorial authority. Transmitting a libelous
statement made by another is libel.
So, the question would be, are you as list-owner going to be treated
like a contract printer or like a publisher. IMO, that will turn on
whether your list is moderated. If posts are automatically forwarded to
your subscribers without any human intervention, then I think you are
not liable for their content. If you have to approve content, then I
would expect a court to hold you accountable if you approve libel. If
you "retro-moderate" by no-posting subscribers based on their content,
and fail to stop a subscriber from repeatedly engaging in libel, it
could go either way, IMO.
>
> "Due to your in-attention in enforcing your own rules, I'm afraid I've
> lost revenue, which I can prove in court."
Is the relationship between list-owner and subscriber governed by
contract law? A contract does not require that money change hands;
"I'll mop your floor if you wash my car" is a valid contract. On the
other hand, a one-sided promise ("I'll wash your car.") is not an
enforceable contract.
It's clear that the list-owner provides something of value to the
subscriber, but does the subscriber provide something of value to the
list-owner? The subscribers generally provide content, without which
the list would be worthless. But an individual subscriber ordinarily
makes no pledge to participate, or to read, or to do anything other than
not violate the rules and disrupt the list. Is that enough mutuality to
make a contract? Probably not.
>
> "Your unfair rule enforcement also abridges my right to free speech, so a
> civil rights violation is also at issue."
As a previous response pointed out, the First Amendment applies only to
governmental action. Unless your list-server is run off of a federal,
state, or municipal (including university) computer, there is no "state
action" here. If you're using a governmental list-server, liability
under the sec. 1983 of the civil rights statutes cannot be ruled out.
OTOH, if the question were kicking someone off because of race, the
question would be not whether you were a governmental entity but whether
a list-server is a public accommodation.
> It is my
> understanding that a list I create/host/own is mine to do with as I
> please.
The law of the Internet and electronic comunications is in its infancy,
and the best we can do is to extrapolate from traditional law.
Nothing, however, is completely yours to do with as you please, either
in cyberspace or real life. If you buy a building, create a restaurant,
and host customers, you can't (1) exclude customers because of race, (2)
violate health laws, (3) drop hot coffee in customers laps, or (4) burn
the place down, to name a few. You do have pretty complete freedom in
deciding whether to serve Thai food or Ethiopian, how to price your
menu, what color to paint the walls, etc.
Exactly where the line between those two categories is what makes life
interesting (and lawyers rich).
GK
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