NetNews Offline 2/NetNews Offline Volume 2.iso/news/comp/lang/c++-part1/5942

Internet Message Format | 1996-08-05 | 7.4 KB

Path: news.sprintlink.net!rockyd!cmcl2!schonberg!joe
From: BWAHAHAHAHA@USENET (USENET HUMOR ADMINISTRATION)
NNTP-Posting-Host: schonberg.cs.nyu.edu
Organization: none
Newsgroups: alt.culture.usenet,alt.usenet.kooks,biz.comp.accounting,comp.databases,comp.lang.ada,comp.lang.c++,comp.lang.eiffel,comp.software.licensing,soc.culture.russian,soc.culture.soviet
Message-ID: <joe.482@schonberg>
Date: Wed,  7 Feb 1996 09:34:42 EST
Subject: COLON JAMES III HAS NO CREDIBILITY

SUMMARY: COLON JAMES HAS NO CREDIBILITY AND HIS "REPUTATION" CAN'T BE DAMAGED

THANK YOU, MY RUSSIAN CORRESPONDENT WHO CHOSE TO REMAIN UNKNOWN, FOR THE
INTERESTING LEGAL COMMENT!!!

ADD THIS URL TO YOUR HOME PAGE: http://www.wetware.com/mlegare/winnersk96.html

Subject: Colin's legal bullshit

Only ignorance of readers of soc.culture.russian and maybe
other groups allows Colin's claims about the possibility of a
successful legal action against his critics and their employers go
unchallenged. Note that I am not an attorney and my opinions are
taken from law textbooks and legal research papers by EFF. TALK TO
YOUR ATTORNEY IF YOU HAVE A PARTICULAR LEGAL PROBLEM. Read a very
interesting book by Powe, "The Fourth Estate and the Constitution".

For non-native speakers: US law considers defamation (untrue
statements that harm reputation of a person and tend to stop others
from associating with him/her) to be a tort. A tort, as Russian
readers should know, is not a cake, but a violation of one's implicit
obligation not to harm others. Victims of defamation can receive
compensation for the harm that was done.

Law recognizes the distinction between two forms of defamation:
slander (spoken defamation) and libel (when defaming words
are created in some tangible medium such as print). Law considers
libel to be a more serious form of defamation than slander, for
obvious reasons. Note that defamation on USENET is usually classified
as libel, because USENET is a tangible medium (hence USENET postings
can be copyrighted).

First, an absolute defense in libel cases is truthfulness of
defendant's statements in question. Therefore, since Mr. James
has really been elected USENET Kook of the Month Jan 96, stating
this true fact cannot be considered libel by courts. Just as well,
pointing readers to an URL that announces results of Kook elections
cannot be libel or libelous per se (words so derogatory that they
automatically harm a person's reputation).

        http://www.wetware.com/mlegare/winnersk96.html

My personal advice is NOT to use the word "Kook" alone, but to refer
to Mr. James by his full new title "USENET Kook Jan'96 Colin James".
This title represents an objective reality - results of Kook elections,
and thus cannot be libelous, despite the fact that Colin does not
like it.

Second, libel law (after *Washington Post v *) recognizes distinction
between private persons and public persons. In brief, public persons
are those who chose to make themselves objects of public interest.
Hence, known actors, politicians and so on are public persons.

The law reasons that First Amendment requires that discussions regarding
matters of public interest should go as free as possible. The law
also recognizes the possibility of honest mistakes in such discussions.
Therefore, courts reasoned (in *Washington Post vs *) that applying the
same standards of libel to discussions of public persons as applied to
private persons will chill the discussions and will be contrary to the
First Amendment.

Therefore, the standard of defamation as applied to public persons
is much stricter, and the plaintiff must prove "actual malice" in
the actions of a defendant. Needless to say, proving actual malice
is usually very hard.

Just look at what "Clinton's Chronicles" are saying about Bill Clinton.
Still, no one can shut them down.

Mr. James decided to be a public person when he started posting messages
to USENET, and he obviously wanted to advertise himself, participated
in discussions of public interest very actively, was himself an object
of public interest when he started sending dozens of complaints
to employers of USENET posters and reporting these complaints
publicly. Therefore, in a defamation lawsuit, the court will have
to stick with the standard of public person applied to Colin James.

As well, a preferred response to defamation, under the First
Amendment, is not to sue, but to reply to the defamation with
a rebuttal. Public persons, by virtue of their status, have the
possibility of such response (because they can, say, request an
interview with a newspaper). Mr. James, obviously, can do the same
by posting rebuttals to USENET.

Third, when assessing damages, courts look at what kind of reputation
the defamed had in the community. In our case this community is a
number of USENET groups. If the court finds that the plaintiff had
no reputation at all, obviously the reputation could not be damaged
further by the defamation, and no damages can be assessed. Just
as well, if the defendant had no reputation at all, no damages
could be done by him/her as well.

After January Kook elections, in my opinion, Colin James HAS NO
CREDIBILITY AT ALL. 209 votes cast for Colin show that USENET
Community has no respect for him and does not want to associate
with him. Therefore, whatever and whoever writes about him, such
writings cannot harm his already nonexistent reputation.

Note that what is important is the fact that the incredible number
of votes of USENET users for Colin meant that the voters did not
give him any credibility at the time of voting. Therefore, this
election answered the question whether Colin had any credibility,
negatively (as if anyone respected him;).

The last but not the least is the standard of evidence as applied to
usenet postings. Standards and rules of evidence is a highly
technical field for legal professionals and laypeople should not make
hasty opinions about them. As well, civil actions do not require
as strict proof of evidence as criminal cases do: whereas in criminal
cases the proof must be "beyond a reasonable doubt", civil cases
are decided on the basis of "preponderance of evidence". However, I
have serious doubts that a USENET posting alone can be considered
sufficient evidence.

After all, it is almost trivial to post messages looking like they came
from someone else. Therefore, at least theoretically, Mr. James could
post a defamatory message about himself, make it look like it
came from his critics, and then sue them for defamation, collecting
damages. It would not be fair.

The conslusion is that you should not keep outgoing copies of messages
about Mr. James that you post. Also, NEVER admit that you indeed
posted anything without prior consultation with your attorney.

Do NOT talk to Mr. James and refer him to your attorney or simply
hang up if he calls you. If you consider his phone calls to be of
harassing and threatening nature, please call the police immediately
and file a police report.

The only thing that Mr. James CAN do to you is to sue you and lose
the lawsuit, possibly even by summary judgment. You will simply
lose some money that you spent on your own attorney, but there is a
possibility that you will recover your legal expenses from the
plaintiff or bring a successful counterclaim.

Since in my opinion Mr. James is stupid and inadequate, it is highly
unlikely that he has sufficient financial resourses for lawsuits
that are doomed to be lost. No attorney will of course agree to
pursue his "cases" on contingency basis, and I am sure that Colin
cannot afford too much litigation himself.