From: Black Unicorn <unicorn@access.digex.net>
Date: Thu, 19 May 94 15:27:19 PDT
To: cypherpunks@toad.com (Cypherpunks List)
Subject: Mr. Sternlight, libel
Message-ID: <199405192227.AA07285@access1.digex.net>
MIME-Version: 1.0
Content-Type: text/plain


I MUST highlight the fact that this is a very general survey of libel law 
and the state law which is applied will have radical effects on the case.
 
I must also point out that this is in no way legal advice, but merely 
academic examination.
 
 
In order to make a prima facie case of defamation the following must be 
met by 
the plaintiff:
 
1>  A false and defamatory statement concerning him
2>  Publication of the statement.  (Note 1)
3>  Fault, at least to the point of negligence, some exceptions apply.  
(Note 2)
4>  Special harm of a pecuniary nature or actionability of the statement 
generally.
 
Note 1:  Publication is defined merely as communication to a party other 
than the plaintiff.
 
Note 2:  Fault where the plaintiff is a private citizen varies from state 
to state between mere negligence, intent to harm and reckless disregard.
 
A statement is defamatory if it has a "tendency to harm the reputation" 
of the plaintiff.  Rest. 2d of Torts sec. 559.
 
The reputation of the plaintiff need not be actually injured, it need 
only be shown that the reputation of the plaintiff could have been harmed were 
the statement to have been believed.  An exception exists where the statement 
is not clearly defamatory on its face, and in this instance the plaintiff must 
usually show special damages which indicate actual damage to reputation and
pecuniary harm resulted.
 
The truthfulness of the statement is an absolute defense for an action of 
libel.
 
Where the defendant has made a charge of wrongdoing against the 
plaintiff, the defendant must show that the plaintiff actually committed the
offense alleged, not a lesser or greater offense. 
Rest. 2d of Torts sec. 581A, comment f.
 
Where the statement is a matter of public interest, the burden of proof 
lies on the plaintiff to show that the statement was false.  (Potentially this 
holding in _Philadelphia Newspapers v. Hepps_, 475 U.S. 767 (1986) is only 
applicable to defendants who are media organizations.)
 
Non-media defendants are most likely to bear the burden of proof, rather 
than the plaintiff as the plaintiff burden of proof in the case of public 
interest matters is to avoid the chilling effect of potential liability and 
frivolous law suits.
 
In order to assert a defense of libel for the protection of the interests 
of the recipient of the publication (Netcom), the defendant (Sternlight) must 
show in most jurisdictions that the defendant was responding to a request for 
information rather than offering the information without provocation.  
Rest. 2d. of Torts sec 595(2)(a).
 
 
I turn to the facts at hand:
Here is the letter sent to netcom by David Sternlight as given to me by 
Mr. 
Beker:
 
 
BEGIN ATTACHMENT OF STERNLIGHT LETTER:----------------------------
 
>From strnlght@netcom.com Thu May 19 13:54:09 1994
Date: Wed, 18 May 1994 15:59:44 -0700 (PDT)
From: David Sternlight <strnlght@netcom.com>
Reply to: david@sternlight.com
To: Netcom Support <support@netcom.com>, Brian Beker <beker@netcom.com>
Subject: Patent infringement
 
In tracking down slow response on netcom8, I discovered that user beker was
idle for over 16 minutes, and since the timeout was supposed to be 12, I
fingered him to see if he was a netcom staffer.
 
I found his .plan file contained a PGP 2.3a key. That infringes RSADSI's
patents. That this is so has recently been confirmed by an independent
inquiry by lawyers retained by MIT.
 
The patent holder, RSADSI, has said that no only do versions of PGP 
except the
soon-to-be-released 2.6 and the commercially sold Viacrypt version 2.4
infringe in the U.S., but posted keys and key servers constitute inducement
to infringe and/or conspiracy to infringe.
 
Given netcom's new user agreement, I'm user user beker will want to correct
this.
----- end
 
Mr. Sternlight has written to a party, not Mr. Beker satisfying the 
requirement for publication.  The publication is "in print" making the analysis
one of libel, and not slander.
 
Mr. Sternlight has alleged wrongdoing by Mr. Beker.  (Patent infringement)
 
Mr. Sternlight is not (as far as I can tell) entitled to 3rd party 
interest protection, and is thus not excepted by this privilege as he has not 
responded to a request for information from Netcom.
 
Mr. Sternlight has cited some source for his legal interpretation, the 
clarity of this source, or its existence at all will determine Mr. Sternlight's 
negligence in this matter.  The language of the letter seems to suggest 
that attorneys from MIT have ruled THIS SPECIFIC user as in violation of the 
patent in question.
 
I believe it would be difficult to show recklessness or intent to harm 
reputation in this instance.
 
On the issue of harm to Mr. Beker, I have no information.  Key in this 
regard will be the question of Netcom's handling of the situation, and what
harm might have occurred to Mr. Beker.
 
Mr. Sternlight may assert the defense of truth.  I am not familiar with the 
patent case such to comment on his likely result here.  Were the letter 
seen to claim that attorneys from MIT had ruled the user Beker 
specifically as an infringer, I believe he would lose this defense.  Further
the fact that Mr. Sternlight's letter seems to suggest that Mr. Beker is 
the subject of scrutiny by attorneys from MIT is a potentially independent
issue of defamation.  This assertion I feel is more likely to be found reckless.
 
 
Overall the weakest aspect of the case is damages.  It seems hard to show that 
there were significant reputational damages.  Even if all the other criteria
are satisfied, the lack of significant damages as a practical matter will 
likely derail any action.
 
I believe this case _might_ satisfy the Rule 11 requirements for an 
action in federal court, the weakest part being the satisfaction of the
(significant) minimum damages to entertain a federal diversity action.  
In any event, were a Rule 11 challenge to be survived, it would require a
sympathetic judge,and some additional facts, particularly in the area of
damages.
 
The bottom line:  Weak case on these facts.  No damages apparent.
 
 
-uni- (Dark), who is rusty on libel.
 
 

-- 
073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est
6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa    -    wichtig!