FC: Replies about what to do when an auction seller lies about you

[Declan McCullagh <declan () well com>]

revious Politech message:
"Query about what to do when an auction seller lies about you"
http://www.politechbot.com/p-04898.html

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Date: Fri, 27 Jun 2003 12:29:44 -0400
From: "Paul Levy" <PLEVY () citizen org>
To: <weaponsrus () earthlink net>, <politech () politechbot com>, <declan () well com>
Subject: Re: FC: Query about what to do when an auction seller lies about you

The answer is simple:  Yahoo! has no LEGAL obligation to remove an
allegedly defamatory posting that somebody has placed on its interactive
computer service.  They may well do so, but the CDA makes it immune both
from liability for the posting, and from liability for its failure to
remove even after placed on notice of the allegedly defamatory nature of
the posting.  This is very clearly established by every court to have
considered it.  Depending on where a suit based on a theory of Yahoo!
liability might well risk sanctions (that is, Chuck must pay Yahoo!'s
attorney fees) depending on where  the case is filed.

Sure, Chuck doesn't want to waste time suing the actual poster because
who knows whether that individual has the assets to pay damages; he
wants to sue the deep pocket.  But the CDA protects Yahoo! regardless
that it is one of Declan's faithful subscribers who is the plaintiff and
regardless of the fact, which I assume for the purpose of this response,
that Chuck is pure as the driven snow and the proof he has sent Yahoo!
is irrefutable.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html

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Date: Fri, 27 Jun 2003 12:00:29 -0700
From: Brad Templeton <brad () templetons com>
To: Declan McCullagh <declan () well com>
Cc: weaponsrus () earthlink net
Subject: Re: Lawsuit: Query about what to do when an auction seller lies 
about you

Well, these reputation systems are important -- many would say essential --
to the operation of online auction sites and other systems which enable
commerce between small players who could not possibly maintain national
reputations on their own.  They are thus a very valuable decentralizing
technology and vastly improve the efficiency of markets, which is good
for just about everybody.

Indeed, one might argue that without the ability to gain a good reputation
on eBay or Yahoo you would never be able to win the trust and sell to
strangers around the world as you can, so when you get a bad reputation
due to lies, you are actually just back where you started, and not diminished
in the grand view of things.

However, clearly once you build a good rep in these systems it becomes
an asset.  You will earn more for what you sell, buy on better terms
etc.  And damage to it does indeed cost you money.

So how much is it worth to you?  Putting yourself in Yahoo's shoes,
having to devote staff time to make a fair analysis of defamation claims
is very expensive.   One could easily see hundreds of dollars, if not
far more in some cases, of costs to arbitrate such disputes.   They
can't just pull bad rep comments on demand, that makes the system
useless.   Thus they have to determine if they are fair.

If you put such a demand on them, are you willing to pay the cost of
it?  Are we all willing to pay the cost?   If it destroys the marketplace,
we surely aren't.

One easy solution is to tell people to put only opinions in customer
feedback.   "Did not pay" is a factual statement, and provably true or
false, and thus possibly libel.   "Unsatisfactory ethics, would not
sell to again" is an opinion, and protected.

But would you feel that much happier if the system enforced such a
rule, and let you convert a "did not pay" falsehood into a nasty
opinion?  Would it serve you at all?

Another option might be to allow people to remove one feedback per 100
transactions, as scientists will often "throw out the highest and the
lowest."

Yes the number has to be as high as 100 or higher.  On eBay, a rating of
97% favourable comments, for example, is a red flag of a bad user!
(Due to the quid pro quo nature of ebay feedback, you get a lot of
positives.)   Anybody with a rating only 10% negative would probably drop
the account and create a new one.


So, your goal is to propose a solution which is affordable for the
reputation system that redresses the needs of the defamed.

eBay does this in part by letting you comment on negative feedback.  There,
you could append to the comment about not paying, "He's lying, I have
the cancelled checks." and people would see it.  If it was an anomolous
event, people don't count it against you.

---

Hi Chuck -

"I still think that would have been legitimate."

So do I.  With the physical proof in hand, they would have had no excuse.

As an aside, I'm pretty well fed up with the pseudo-mystical "well being of
the Internet" cover-all excuse for bad faith acts.  The net is simply a new
form of communication.  Admittedly, it embodies a bold step, but it does not
create new people, nor does it change the basic rules of human interaction.

I totally disagreed with Declan's recent article about the suit against
Earthlink for withholding e-mail.  I normally agree with his views, but not
on that one.  I read the entire lawsuit, too.  "It's a new technology; don't
hamper its growth" should not be used as a cover for acts of bad faith or
gross negligence.  Also, i think (and this is surely not *legal* thought -
just an expression of my view) that the ISPs should be estopped from using
the "voluntary private contract" defense by their "e-mail is essential"
marketing.

Since we're here: another place i disagree with many if not most, is spam.
I see it as a free speech issue.  As far as i'm concerned, the "trespass"
analogy with regards e-mail is totally bogus.  My mailbox is part of my
house; i own it but anyone can send me mail.  I view my e-mail inbox as
*exactly* analogous.  I recognize the problem of spam, but think it should
be addressed through fraud statutes - false return addresses, etc.

Anyway, sorry to have digressed.  I think your contemplated course of action
would have been totally justified.

Kind regards,

P.S. cc'd to Declan since i comment on his opinions.  Please don't post with
my name, etc.

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Date: Fri, 27 Jun 2003 13:09:53 -0500
To: declan () well com, politech () politechbot com
From: Mike Schneider <mike1 () usfamily net>
Subject: Re: FC: Query about what to do when an auction seller lies about
 you

At 10:30 AM -0400 6/27/03, Declan McCullagh wrote:
> From: "Chuck Hammill" <weaponsrus () earthlink net>
> To: <declan () well com>
> Subject: cyber-libel subtleties -- OK to post if you deem worthwhile
> Date: Thu, 26 Jun 2003 21:26:35 -0700
>
> I offer him a chance to apologize and correct the Yahoo rating, but he 
> e-mails me, while I am holding his cancelled checks in my hand, that I am 
> probably mistaken (!) so it is now my intention (in a purely metaphorical 
> legal sense, while respecting all his legal rights) to see he gets stomped 
> like a narc at a biker rally, and so does anybody who assists him.  My 
> personal problem is just how much I can hold Yahoo responsible without 
> looking evil in the eyes of Politechers.


Yahoo! has nothing to do with it, anymore than the USPS does when you used 
it so mail your checks to Mr. Scumbag.

Have an assertive-voiced friend give Mr. Scumbag a call (or email, but a 
call is better), pretending to be your lawyer, informing him of your 
intention to sue over fraud, theft, libel and defamation of character, 
unless he not only immediately sends you the merchandise you purchased, but 
issues a correction or retraction on his web-page. Email jpegs of the 
canceled checks.

There's no way he'll even dream of going to court over thirty bucks.



Mike.

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Date: Fri, 27 Jun 2003 12:27:00 -0700
To: declan () well com, politech () politechbot com
From: David Honig <dahonig () cox net>
Subject: Re: FC: Query about what to do when an auction seller lies
  about you
Cc: "Chuck Hammill" <weaponsrus () earthlink net>

IMHO I think that commercial libel is actionable without incurring
the wrath of us rabid First Amendmenters.  In fact,
regular old libel is still actionable without infringing the
1st.  So one needn't even make a distinction about "types of speech".
I don't know of any serious freedom-of-speech gripes about this.

I wasn't sure what you meant by "bought via Yahoo", but I
figured out that Yahoo must run something like eBay, which I've
used.  eBay cautions that "feedback" (ie reputation data)
is not retractable, but at the same time, since eBay wants
to maintain a reputation for fairness, one imagines that if
both parties (or one sufficiently documented party as you may be)
complained, there would be an exception-handling procedure in place.
Probably involving a human and some time.  For
instance, the complainer might have been careless with attributing
one person's wrong to another.

*You* could still blog the person (or nym) in your case as "careless",
"irresponsible", etc. which being true is a defense against libel.
You could also *opine* about how much crack he might have smoked that
day.  If you received the goods as described (you don't say this) you can't
describe him
as "fraudulent" but you can impugn everything else.  "Joe Mechanic
did fix my problem, but it took him three times, and he was rude and smelly.."

BTW Chuck Hammill probably isn't a totally unique meatspace name (not like
David Nelson :-),
but as you say you may have a lot invested in the binding of it to your
email address.

IANAL.

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Date: Fri, 27 Jun 2003 12:50:50 -0700
To: declan () well com, politech () politechbot com
From: David Honig <dahonig () cox net>
Subject: Re: FC: Query about what to do when an auction seller lies
  about you
Cc: "Chuck Hammill" <weaponsrus () earthlink net>

I should clarify something from my previous comment:
Yahoo was not acting as a mere "common carrier" if
they run an auction program.  At least, eBay isn't,
AFAIK.
If they *were*, then you can't take action against
them, only the libelous party.  Similarly, one can't
sue an weblog hosting service for the libel of a
blogger.  Its only if the weblog hosting service
exerts control over the interaction that it becomes
a party to the interaction.

If someone calls around your neighborhood leaving
disparaging messages about you, you cannot sue
the Telco.  You might only be able to enlist their
help to find the messenger, with a warrant.


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From: "todd glassey" <todd.glassey () worldnet att net>
To: <weaponsrus () earthlink net>, <declan () well com>
Subject: LAWSUIT>>>Fw: Query about what to do when an auction seller lies 
about you
Date: Fri, 27 Jun 2003 11:30:47 -0700

Chuck - call Yahoo and inform their counsel that you are considering a
Tortuous Interference suit since they are obviously participating in the
process. But check out the link below BEFORE you do so you understand what
is what in US Courts.

What you have to know is that there was a lawsuit that just went through the
courts on almost exactly this type of thing and I don't think you will be
too happy with the result. The suit was done in the US Federal Appellate so
it if citable and is known generally as :"Hitler's Niece" or by its rightful
name, "Bazel v. Cremers". See the Ninth Circuit's decision at:
http://caselaw.lp.findlaw.com/data2/circs/9th/0156380p.pdf

The ISP was found harmless essentially.

Todd




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