to say "our accounting system does not track invoice details -- it only shows the total amount due so your numbers mean nothing to us."
All the while they relentlessly levied disconnect threats with short timelines such as: "if you don't pay us $128,000 by this Friday,
we will shut your operation down."
[...]
At one point their lawyers and accounting people had the nerve to say "our accounting system does not track invoice details
Are you talking with your SP's lawyers without your a legal team of
your own present and advising you?
I think one of the first things they should tell you is not to discuss
pending disputes in public. Time to get
a consultation with your own Lawyers to assist with billing dispute
resolution, ASAP.
Not to mention that accusing someone of a crime (extortion), in public (in this context I would argue that this is public, especially as the term 'community' was used in the allegation) is a pretty serious thing.
Anne P. Mitchell,
Attorney at Law
Legislative Consultant
CEO/President,
SuretyMail Email Reputation Certification and Inbox Delivery Assistance
Available for consultations by special arrangement.
Author: Section 6 of the CAN-SPAM Act of 2003 (the Federal anti-spam law)
Member, California Bar Cyberspace Law Committee
Member, Colorado Cybersecurity Consortium
Member, Asilomar Microcomputer Workshop Committee
Ret. Professor of Law, Lincoln Law School of San Jose
Ret. Chair, Asilomar Microcomputer Workshop
amitchell@isipp.com | @AnnePMitchell
Facebook/AnnePMitchell | LinkedIn/in/annemitchell
* amitchell@isipp.com (Anne Mitchell) [Tue 16 Aug 2016, 16:46 CEST]:
[...]
Attorney at Law
Legislative Consultant
An actual lawyer! Where were you in the CloudFlare booters thread, though?
-- Niels.
Key legal skills are knowing when to stay out of fights and when to keep
one's mouth shut (i.e. most of the time.)
Keeping sensibly quiet, I think... 
Excuse me for chiming in, here… But, if I’m not mistaken (don’t worry, I’m not) - this doesn’t count as ‘slander’ in any way, shape or form. This mail thread is not any kind of valid FCC controlled or public communications device, as the internet was actually excluded from the public communications device list under the Freedom of Speech Act in… Was it, 1996? Which means, ‘slander’ can’t be called in this case. You could argue that it can, but you’d lose in court in the long run.
If you’re aiming for the defamation card? That’s a very difficult one to prove. I’d counter the argument in a court room by asking the judge to prove the plaintiff is NOT an extortionist scum bag. It certainly works both ways. And either way, defamation requires some form of punitive damage be proven in order to actually win that case. Are you saying that the company he is referencing has some way to claim and directly correlate a loss of income or potential loss of income, either present and/or future, due to the comment made on a mail group? I’d love to see that quantification on paper...
None the less, regardless of what one accuses or says on the internet, the usage of the word ‘extortion’ is quite open for interpretation with regards to context, and making such a statement does not qualify for slander nor defamation. He could feel he’s being extorted, in which case exasperating his opinion publicly is no less legal than me telling you that I don’t really think you’re a good lawyer.
Good luck trying to play that card in a courtroom.
Short and simple: One could threaten to sue over it, and one could even try. Personally, I’d turn that court room in to a circus act if someone tried. I’d most likely get fined in contempt a few times, but at least even the judge will go home laughing.
J
Jon,
You're mistaken. This has nothing to do with being or not being an FCC-controlled medium. It has to do with published statements that may not be true -- which are classified as libel, not slander (slander is spoken, libel is written). If you post it in a mailing list, or on Facebook, it's legally considered published, as long as one other person not party to the matter can view it.
You're also mistaken about how the law works. The person making the assertion has the burden of proof. If you say someone is an extortionist, you'd better be able to prove it. All the plaintiff has to do is say "Your honor, I've been libeled, and here are my damages. Please make the defendant compensate me." You will be subpoenaed, and at court the judge will turn to you and say "Where is the proof of your claims?" If you can't deliver, the judgement will go against you.
The plaintiff doesn't have to prove a thing. In fact, his claim will automatically be accepted and processed by the legal system up until you appear in court. The cost for you before that point could be thousands of dollars. If you don't show up for court, you automatically lose.
-mel beckman
-mel beckman
For the record: Extortion(n) Law. *the crime of obtaining money or some
other thing of value by the abuse of one's office or authority.* Not sure
if (according to the provided account) a service provider threatening to
disable a critical business service unless rendered a sum of money the
service provider cannot prove they are owed qualifies as extortion, but
from the definition I found at dictionary.com, it is certainly seems to be
in that general neighborhood.
if I’m not mistaken (don’t worry, I’m not) - this doesn’t count
as ‘slander’ in any way, shape or form.
Jonathan,
Technically you're right, but not for the reason you think. Slander is
verbal defamation. Libel is written defamation. The original poster
has potentially exposed himself to a libel suit.
This mail thread is not any kind of valid FCC controlled or public
communications device, as the internet was actually excluded from
the public communications device list under the Freedom of Speech
Act in… Was it, 1996? Which means, ‘slander’ can’t be called in
this case. You could argue that it can, but you’d lose in court in the long run.
There is no such thing as the "Freedom of Speech Act" in 1996 or any
other year, and the FCC does not have the authority to nor has it
involved itself in the regulation of speech in any medium.
If you’re aiming for the defamation card? That’s a very difficult one to prove.
It's actually very, very simple. Did the defendant allege one or more
facts about the plaintiff? Did the the alleged facts injure the
plaintiff's reputation? Did the defendant prove that the alleged facts
are true? Yes, Yes, No = liable for cash damages.
Regards,
Bill Herrin
But what are the BGP implications?
In addition to the other things already pointed out, punitive damage doesn't
need to be proven.
*Actual* damages have to be proven. Punitive damages are damages added
as punishment, to make sure the responsible party learned their lesson.
So fir instance, if a corporation's negligence results in a worker's death,
his family may be awarded $5M in actual damages for the loss of their loved
one - and then another $20 million in punitive damages, to make the corporation
(and possibly the industry segment as a whole) take notice that sort of
negligent behavior will not be tolerated....
Guys,
Actually, thank you for the responses. I was hoping you wouldn’t take my attempt at friendly and humorous conversation the wrong way. I appreciate the education on the topic, as well.
However, I’d like to ask a few questions on it, if you don’t mind? (Also - you’re right, it’s not the freedom of speech act I’m thinking, wasn’t it some form of ‘decency act’ ? I digress, though…)
For something to actually be considered libel, isn’t it required that the statement be untrue, damaging in a way that must be proven and actually knowingly false?
Proving damages would be hard… But putting that aside, proving what he is saying is not true (unless it’s just 100% false and they have recorded evidence of it) might be even harder if they don’t have proper records of past due balances, or properly recorded communications (i.e. email). And where is the line drawn with regards to him/her knowingly making statements that are not true? And wouldn’t it still alsol require a general purpose public figure, or a limited purpose public figure, to prove malice in the instance? I don’t think the company would qualify as a general or limited purpose public figure. That would pretty much apply to actors, performer and/or social activist types - or politicians. Not a service provider…
If he perceives it to be extortion, then it would be difficult to say that him claiming extortion is libel. The definition of extortion is the general practice of obtaining something, especially money, through the use of force or threats. In this case, the company is using the threat of disconnection as the force, and they are indeed attempting to collect money. So, if we take it from a literal definitive view of ‘extortion,’ the word, by definition, fits the scenario. It doesn’t imply wrong doing, really, and could be applicable to any and every service provider in existence today - even the pharmaceutical companies with regards to withholding medication that can save lives unless absurd amounts of money is paid. I’d say the entire world could be classified as extortionists if we go by the actual definition.
J
Dear nanog,
I'm asking the group to stay focussed on network operator topics.
While I appreciate the time and effort spend on the original legal
research in this thread, I fear the problem space of what defines libel
or slander is too far removed from the mailing list charter as described
here: https://www.nanog.org/list
Thanks!
Kind regards,
Job