Great Circle Associates List-Managers
(January 1998)

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Subject: Re: Ever Been Sued?
From: Mitchell Leben <mitch @ leben . com>
Date: Fri, 30 Jan 1998 16:09:46 -0600 (CST)
To: Gillam Kerley <gkerley @ execpc . com>
Cc: list-managers @ GreatCircle . COM
In-reply-to: <>

On Fri, 30 Jan 1998, Gillam Kerley wrote:
> 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. 

That is a very good question. He is not accusing ME of slander, but is
holding me responsible because it is my list. It also happens to be my
server, though I doubt he knows that. I wonder if it makes any difference
if the list is hosted on a server I own?


> 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.

Nice points. I lean toward the the 'contract printer' analogy. The list is
unmoderated, though I do step in from time to time. In the beginning I
read every post, but now that I have more/larger lists I don't have the

> 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.

I can't see what the list member's promise would be. My duties are fairly
clear, but the member is under no obligation to do anything. The only
bounds imposed on the member are stated in the list charter.

> 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? 

I would have to say yes. Each member (even the lurkers) add to the value
of a list. Of course the value is really passed directly to the other list
members instead of the list owner. I think it is safe to say that most
lists owners are not active on all of their lists. At the beginning
perhaps, but it seems to me most list owners end up keeping the peace
from the sidelines (with exceptions of course).

> 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.

The only hint of a contract is the charter, which the member agrees to
when she joins the list. If I find a charter objectionable, I will not
zubscribe. If the member then breaks the rules, she breaks whatever
contract may exist. 


> The law of the Internet and electronic comunications is in its infancy, 
> and the best we can do is to extrapolate from traditional law.  

If only I knew more of 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.

Do you agree though that I can decide who can and cannot participate on my
lists? For this discussion we can easily put race aside, one of the
benefits of text based communications. Gender is still an issue, though I
write to many people with no idea of their gender/age/race, etc. For
example, who might "" be? (BTW I just made that up).

> Exactly where the line between those two categories is what makes life 
> interesting (and lawyers rich).

..and list owners apprehensive. Perhaps some of us would jump at the
chance to get bogged down in a law suit. I would rather spend time on
other (pur)suits.


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