26.4 Actionable Content

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Computers and networks give us great opportunities for communicating with the world. In a matter of moments, our words can be speeding around the world, destined for a large audience or for someone we have never met in person. Not only is this ability liberating and empowering, it can be very entertaining. Mailing lists, "chat rooms," multi-user dimensions (MUDs), newsgroups, and web pages all provide us with news and entertainment.

26.4.1 Libel and Defamation

Unfortunately, this same high-speed, high-bandwidth communications medium can also be used for less than noble purposes. Email can be sent to harass, news articles can be posted to slander, web pages can contain defaming stories, and online chats can be used to threaten someone with harm.

In the world of paper and telephones, there are legal remedies to harassing and demeaning communication. Some of those remedies are already being applied to the online world. We have seen cases of people being arrested for harassment and stalking online. People have been successfully sued for slander in posted Usenet articles. There have also been cases filed for violation of EEOC (Equal Employment Opportunity Commission at http://www.eeoc.gov) laws because of repeated postings that were sexually, racially, or religiously demeaning. Even screensavers with inappropriate images have been the subject of litigation.

Words can hurt others, sometimes quite severely. Often, words are a prelude or indicator of other potential harm, including physical harm. For this reason, ISPs must have policies in place prohibiting demeaning or threatening postings and mailings from the accounts of users. An ISP might even wish to have a policy in place prohibiting any form of anonymous posting or mailing from users. Otherwise, the ISP might be seen by a court as encouraging, at least indirectly, any misbehavior by customers.

As a publisher of web pages, you should also be careful about what you say about others. A false or insulting allegation can land you in a courtroom explaining to a jury what a web page is, and why you shouldn't have all your possessions seized as a judgment because you called someone an untalented idiot in your online review of her web pages. Unlikely? Not necessarily the law is still evolving in this arena, and electronic media do not have the same protections as print media. But even in print, there are limits on what you can say without being sued successfully.

26.4.2 Liability for Damage

Suppose that you make a nifty new program available via your web page for people to use. It claims to protect any system against some threat, or it fixes a vendor flaw. Someone at the Third National Bank of Hoople downloads it and runs the program, and the system crashes, leading to thousands of dollars in damages.

Or perhaps you are browsing the Web and discover an applet in a language such as Java that you find quite interesting. You install a link to it from your home page. Unfortunately, someone on the firewall machine at Big Whammix, Inc., clicks on the link and the applet somehow interacts with the firewall code to open an internal network to hackers around the world.

If your response to such incidents is, "Too bad. Software does that sometimes," then you are living dangerously. Legal precedent is such that you might be liable, at least partially, for damages in cases such as these. You could certainly be sued and required to answer in court to such charges, and that is not a pleasant experience. Think about explaining how you designed and tested the code, documented it, and warned other users about potential defects and side effects. And what about the implied warranty?

Simply because "everyone on the Net" does an action does not mean that the action will convince a judge and jury that you aren't responsible for some of the mess that the action causes. There have been many times in the history of the United States when people have been successfully sued for activity that was widespread. The mere fact that "everybody was doing it" did not stop some particular individuals from being found liable.

In general, you should get expert legal advice before providing any executable code to others, even if you intend to give the code away.

26.4.3 Protection Through Incorporation

In the U.S. legal system, anyone can sue over basically anything. Even if you are bland and play by all the rules, you can be sued. That doesn't mean you have done anything wrong, or that the plaintiff can succeed in a case. It does mean, however, that you will need to respond. Lawsuits can be used as a harassment tactic. There are some controls on the system, including countersuits over frivolous prosecution. However, you should keep the possibility in mind.

One way to provide partial protection is through incorporation. A corporation is a legal entity. If all the equipment you use is owned by the corporation, and the "publications" that might be at issue are from your corporation, then any lawsuit would be directed at the corporation. This doesn't make such lawsuits any less likely, but it does mean that if you lose, your personal possessions might not be forfeit in a judgment.

There are many other considerations involved with corporations: tax issues, reporting requirements, and operations issues should be carefully considered. Even simple incorporations can add many thousands of dollars to the overall cost of doing business. If your corporation's stock is owned by more than a few people, or if the stock is sold to the general public, the cost of doing business will be higher still.

If you do incorporate, you must be careful to conduct all of your organization's business through the corporation, lest you lose what protection incorporation may grant you. This means that your business should have its own telephone line, and that you should use that phone line for all incoming and outgoing calls that are business-related and never for calls that are personal. It means that your business should have its own bank account, and these funds should be treated differently from the funds in the bank account of the business's principals. If you use your business to pay all of your personal expenses, you may find your personal assets in jeopardy should litigation arise.

There are many books available on the pros and cons of incorporation. Before proceeding, we repeat our chorus in this chapter: seek the advice of a competent attorney for further discussion and details.

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