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gj Michelob -> RE: Felipe Conde (May 5 2013 15:29:51)
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quote:
sorry, but I don't see this as an obvious, much less "simple", point.
You are absolutely correct, there is nothing simple about applying the law to specific circumstances, and particularly so in what is a rather novel area of the law [the internet] which encompasses more than one jurisdiction [meaning the blog is published and read in the UK but also the US, and in nearly every country in the world].
Here is a good article that should answer some of our concerns:
https://www.eff.org/issues/bloggers/legal/liability/defamation
Let me just add a few footnotes.
We all love this Foro.
Whenever someone attacks it with cease and desist letters and threatens to sue, in the US or say in Spain, I do not simply reply as I would to a post here, but must first research the particular issue, law and case law [court’s decisions] and often refer to more experienced colleagues [on internet law]. If the threat is from abroad, I consult with colleagues in that jurisdiction –which sometimes I [had to] pay for their counsel.
If the claim becomes an ‘action’ in Court, as romantic a view one may have of fighting it before Judge and jury, the costs of legal proceedings are ‘astronomical’ in the US.
Fortunately, thus far we succeeded in avoiding any litigation, but –as you can imagine -the administration becomes disheartened and frustrated, while a desire to shut down the operation weighs heavily among the strategic options to sort out the problem.
By the same token, a few members of this Foro, who had a cavalier attitude toward the subject, called me in tears when the threat of litigation knocked on their doors. Also then, and pro bono, I intervened successfully.
Hence, my criticized stern warnings.
Let me offer a simple example:
Say that Ricardo [and he knows I adore him so he will pass me the use his name for my example] posts that:
1. I can’t play guitar and should try the French Horn;
2. My compositions are painful to the human ear, and he can’t imagine what they may do to the more sophisticated canine auditory senses;
3. My ‘Solea’ is neither so, nor is it Flamenco by any stretch of merciful imagination;
4. I plagiarized the song by copying slavishly his ‘Plaza del Cabildo’ [I just purchased the score from him].
1 and 2 are opinions. And as such –in the US- are protected speech. But God only knows what the laws are in other jurisdictions.
Is 3. an opinion or a statement of fact and can it be harmful or offensive? Depends on a variety of factors and there is no precise answer.
All three are true, incidentally, but proving it in court is still a journey.
Number 4 [Plagiarism] is it, this is defamation, which Ricardo could defend only by proving that his accusation is true, that my song really steals his.
My simple view or rule of thumb is this:
By all means say whatever you like, in the US at least where people are more litigious, we enjoy freedom of speech. The last thing I want is to inhibit free speech on a forum.
However, just be considerate and careful. If you choose to accuse someone of a wrongful act or practice [plagiarism, counterfeiting, any criminal activity, fraud –consumer fraud as to country of origin or source] then you should think twice, and do not venture there, unless you can document the truthfulness of the statement [i.e.: provide court documents or published articles exposing the truth, or the findings of you own research]. Remember even newspapers are liable for defamation, not just the writer but the editor and the ownership as well.
The ISP's liability for hosting a defamatory statement is still debated. Certainly, it is more dangerous when the host is negligent [does not care] or grossly negligent [it receives notice and still does not care]. But the ISP has the right to delete any post. The debate goes to eBay, are they liable for the counterfeit products sold through their site -and from which sales they profit? Good query. In France they are but in the US solely if the offended party has formally complained.
I refer to my point above, who wants to defend a lawsuit anyway? A prudent ISP will avoid the problem altogether by exercising a measure of caution. I appreciate this isn't a pleasant subject, no one enjoys being told what to think or say...
... What Tacitus 'posted' a few centuries ago remains unchanged after all:
Rara Temporum Felicitas Ubi Sentire Quae Velis et Quae Sentias Dicere Licet.
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