Re: [Bug-gnupedia] Legality

[Brian Russo]

On Mon, Jan 22, 2001 at 11:27:37AM +0200, Peteris Paikens wrote:
>   There is a problem with legality and free opinions -
> Servers should be hosted in a Free place, because controversial opinions
> might be illegal in some countries; The Tianmen square or Taiwan and China;
> Nazis and Germany, etc.

Controversial things are always.. controversial.. I see this as more
of a dissemination [technical] issue, rather than a policy one.
You can't integrate in some kind of magic "Anti-censorship" essay
into the gnupedia, and expect these kinds of issues to disappear.
If you're concerned about libel.. read on below.

>  And from what I lately read, maybe it should be in a place more free than
> USA, with notorious libel and IP laws. Can we post an article containing
> DeCSS code without risking the servers taken down?

*chuckle* no of course not, there's always the risk the server could
be taken down even if DeCSS code was legal to distribute.. seriously
though.

Can we post an mp3 collection containing Unwritten Law's album
_Borders_and_Boundaries_ ?
Can we post illegally obtained source code to Cisco IOS 11.2 ?

come on..

No I'm not trying straw man tactics, but..

Whether or not you agree with whether IP should be afforded
patent/copyright/whatever protection has *no*bearing* on whether
or not you decide to abide by those laws.

FYI, IIRC In Holland (germany?) you cannot patent math/computer
program, etc.

> Can we write articles
> about some political scandal without risking a libel claim


[Note: this bit on libel is purely from a US perspective, pardon the
america-centrism of it, but it's the only law I know a bit about]

factual or opinion articles?
libel is a civil issue, not a criminal one, the plaintiff bears the
burden of truth, not the defendant, this is an important difference.

The plaintiff must prove the defendant published or otherwise
distributed defamatory information in a negligent or deliberate
fashion, knowing it to be false.

some examples for clarity (brevity chose tails).
* let's assume the reporter knew the truth before publishing.

(Joe does not own a dog)
Joe Foo de Bar owns a dog 
- false. defamatory? hardly. not libel.

(Joe did not kill a dog)
Joe Foo de Bar cruelly stabbed a puppy to death 
- false. defamatory? yep. libel.

(Joe intentionally drove over a cat)
Joe Foo de Bar carelessly slaughters cat 
- true. defamatory? yes. not libel

Note that whether something is true.. bears no matter on whether it
is defamatory.. and vice versa..

how to defend against libel?

let's see..

        * the truth will set you free.
          if what you say.. is.. the truth.. the claim against you
          should be dismissed.
          important: if you say something, _you_ are responsible for
          saying it.. ok this seems obvious.. what I mean is you
          must be certain of what you publish, you can't hide behind
          a curtain of "oh I heard it from so and so"

        * absolute and qualified privilege
          absolute privilege
          public officials and documents, are immune from libel,
          if the alleged damage occured while they were acting in an
          official capacity..this doesn't really concern us.

          qualified privilege
          as we saw above, a reporter/whatever is responsible for
          ensuring (within bounds of sanity) that the substance of
          his statements are true, this does not apply if he is
          sourcing his information from someone with "absolute
          privilege" - of course, the reporter must correctly
          recount what the source said.
          - this is important to us, albeit not terribly so.    

        * neutral reportage
          this is what the media means when they screech about the
          "public's right to know". I want to point out that this is
          too.. widely held.. it's somewhat common, but many
          jurisdictions reject it outright.. something to keep in
          mind.. anyway what it means.

          When there are parties involved that is a "matter of
          public concern", which must involve public figures or
          officials.. the idea is that the public has a right and a
          need to know what's going one.. the outcome could be
          important to them. If the media accurately recounts the
          charges exchanged between sides, the media will NOT be
          responsible if those charges are libellous (note this is
          an exception to the "truth" segment above).
          remember.. not everyone accepts this idea.

        * statute of limitations
          something people don't always think of, you must file suit
          within foo period of time (usually from publication date).
          There is _no_ way for someone to get around this.
          
        * opinions
          maybe now you're thinking what the... I thought I could
          state my opinions freely.. well you can, although  relying
          on this solely as a defence against libel is just a Bad
          Idea (tm) - now you have to be careful HOW and WHAT you
          say..

          Many people would say that opinions are neither true nor
          false. While some may find that helpful in thinking about
          it.. I am of the opinion that it's a stupid idea.

          Why? not because I think opinions are necessarily true nor
          false, I just think it gets people thinking about it the
          wrong way.. for example "I estimate that building to be 30
          meters tall" Well that's nice, but sorry, it's only 20
          meters tall, looks like you were wrong, doesn't it.
          Well.. no, his statement was that he estimated it to be 30
          meters tall, not that it was 30 meters tall. While his
          opinion may have later changed, at that moment in time
          (assuming truthful mind, etc) he thought it was 30 meters
          tall - you cannot deny the truth of this.
          
          Looks like I'm contradicting myself? no.. reread what I
          wrote ;p

          If you're going to state opinions - mark them as such,
          There's a good darn reason newspapers have an opinions
          page. As far as gnupedia is concerned, I think that
          opinions and facts should be clearly labelled, wherever
          possible, multiple authorship and editing should help
          clear out what is true and what is opinion as much as
          feasible.
          
        * fair comment
          similar to opinions.. more along the lines of say.. a
          restaurant review.. or a sports commentator saying "what
          an ugly pass that was" very limited application, usually
          in some kind of movie/sports/whatever review-type deal.
        
        * retractions
          ahh retractions, you see them in the paper, even for silly
          stupid things, why do you see them? well it may not
          prevent a suit.. but it's just a Good Idea (tm),
          ethically.. legally.. it shows that you are a reasonable
          person and said "doh! we screwed up, man we better try and
          fix this" Of course, if you retract something, you are
          acknowledging you screwed up...
          
          Why should you try to avoid getting to here? Well, if you
          screw up, you can potentially ruin someone's
          life/career/whatever - even if you later retract, there's
          still that stigma there. Remember when we defined libel,
          we said "negligent or deliberate".. see where i'm going..

          An admission of error here, means an admission of
          negligence, however, it still needs to be shown that the
          statement was defamatory.. And it's not necessarily an
          admission of malice.. 

blah blah.. I'm not a lawyer, I've tried to be accurate here, but I
can't possibly be familiar with all the statutes/case law on the
matter.. so.. use at your own risk..

oh, and this is my first post, hi i'm brian :)
 - brian
-- 
Brian Russo <address@hidden> GPG ID: 54D81666
Debian/GNU OS: www.debian.org <address@hidden>
magnus frater spectat te - encrypt whenever possible