🚀 go-pugleaf

Arthur D. Mira wrote:
> 
> x-no-archive: yes
> 
> In bc.general, Randy Wittchen <wittchen@direct.ca> wrote:
> 
> =>Jason Black started this thread by asking if it was right for his
> =>ISP account to be cancelled due to the conntent of some of his
> =>posts.  It is my view that the ISP took a prudent course of action
> =>to ensure that it would not be party to an offense or possibly
> =>guilty of publishing a libellous statement by allowing him to post
> =>through its services.
> 
> There's at least a dozen CCof C established *defenses* dealing
> with defamatory libel to set the framework of who is a 'party to the
> offence' and who isn't.
> 
> What they did had more to do with expediency rather than prudence.
> On the up side, if there ever comes a case where one of their clients
> is charged, they're going to have a hell of a time establishing that
> they were unaware of that clients actions given this precedence.
> 
> In setting forth an AUP or TOS it's made quite clear that there is
> no 'right'  to service, much less human or civil rights. If there was,
> then Jason Black would be better advised to pursue it in a legal
> action, than spewing in usenet.
> 
> The part is that irks is that when a 'public' organization's members
> begin to act as judge, jury, and executioner using the *excuse*
> that someone *may* commit a civil or criminal offence. It's a
> mentality of expediency that has no place when dealing with
> legal matters for which they have a fiduciary responsibility.
> 
> They should have let sleeping dogs lie. The Toronto freenet
> did it also, and one of these days that sleeping dog is going to
> wake up and bite a freenet executive right in the butt.

Hi Arthur

One person's expediency may be another's prudence - it depends upon your
point of view.  I deem it prudent to try to avoid the risk that one
could be liable civilly or criminally for the actions of another.  While
there are defences likely open to the ISP, why incur the potential for
liability and considerable expense, be it upon a finding of liability or
simply defending one's position?  Court proceedings are expensive.  

The issue most alive (nad that which carries liability) for an ISP would
be the question of publication of a defamatory statement and iot is upon
this point that the law is most unclear.  Most private organizations and
individuals would not enjoy being the "test case" in this area.  However
there is nothing preventing Mr. Black from setting up his own ISP and
take the risk upon himself should he so wish.

ISP agreements and terms of service are nothing more than contracts
between private organizations and subscribers.  If a subscriber believes
that his/her rights under the contract have been breached, then the
civil courts are open.  I suspect that there would be little if any
damages awarded, even if liability was fixed upon the ISP in such
circumstances which IMHO is extremely unlikely. 

An ISP is a private, not a public, organization and it remains private
whether or not it is a "for profit" enterprise or non-profit society. 
The distinction is important as public (i.e government) organizations
are subject to the Charter.  

An ISP does not in any way stand in a fiduciary relationship to its
subscribers any more than a company to its shareholders.  Although
directors stand in a fiduciary relationship to the company (or the ISP
in this case) IMHO to establish a breach of fiduciary duty where the
directors are acting in good faith to protect the company (ISP) from
potential liability would be impossible.  Of course there is nothing to
prevent the election of directors who would act differently but then
they may be open to question for failure to protect the ISP should
liability subsequently be affixed.  

It is open for a private organization such as an ISP to take whatever
actions it deems advisable to protect its own interests subject to
criminal sanctions and civil liability.  It is the way of the world that
people watch out for their own interests.

There is nothing to prevent an ISP from establishing itself and decide
that it will take all subscribers and not have any rules regarding
subscriber postings.  In that case the ISP has made the conscious
decision that it will accept potential liability for whatever reasons
that it deems appropriate such a promotion of total freedom of
expression.  However any other ISP may decide that it does not ascribe
to such beliefs.


Randy Wittchen