I MUST highlight the fact that this is a very general survey of libel law and the state law which is applied will have radical effects on the case. I must also point out that this is in no way legal advice, but merely academic examination. In order to make a prima facie case of defamation the following must be met by the plaintiff: 1> A false and defamatory statement concerning him 2> Publication of the statement. (Note 1) 3> Fault, at least to the point of negligence, some exceptions apply. (Note 2) 4> Special harm of a pecuniary nature or actionability of the statement generally. Note 1: Publication is defined merely as communication to a party other than the plaintiff. Note 2: Fault where the plaintiff is a private citizen varies from state to state between mere negligence, intent to harm and reckless disregard. A statement is defamatory if it has a "tendency to harm the reputation" of the plaintiff. Rest. 2d of Torts sec. 559. The reputation of the plaintiff need not be actually injured, it need only be shown that the reputation of the plaintiff could have been harmed were the statement to have been believed. An exception exists where the statement is not clearly defamatory on its face, and in this instance the plaintiff must usually show special damages which indicate actual damage to reputation and pecuniary harm resulted. The truthfulness of the statement is an absolute defense for an action of libel. Where the defendant has made a charge of wrongdoing against the plaintiff, the defendant must show that the plaintiff actually committed the offense alleged, not a lesser or greater offense. Rest. 2d of Torts sec. 581A, comment f. Where the statement is a matter of public interest, the burden of proof lies on the plaintiff to show that the statement was false. (Potentially this holding in _Philadelphia Newspapers v. Hepps_, 475 U.S. 767 (1986) is only applicable to defendants who are media organizations.) Non-media defendants are most likely to bear the burden of proof, rather than the plaintiff as the plaintiff burden of proof in the case of public interest matters is to avoid the chilling effect of potential liability and frivolous law suits. In order to assert a defense of libel for the protection of the interests of the recipient of the publication (Netcom), the defendant (Sternlight) must show in most jurisdictions that the defendant was responding to a request for information rather than offering the information without provocation. Rest. 2d. of Torts sec 595(2)(a). I turn to the facts at hand: Here is the letter sent to netcom by David Sternlight as given to me by Mr. Beker: BEGIN ATTACHMENT OF STERNLIGHT LETTER:----------------------------

From strnlght@netcom.com Thu May 19 13:54:09 1994 Date: Wed, 18 May 1994 15:59:44 -0700 (PDT) From: David Sternlight <strnlght@netcom.com> Reply to: david@sternlight.com To: Netcom Support <support@netcom.com>, Brian Beker <beker@netcom.com> Subject: Patent infringement

In tracking down slow response on netcom8, I discovered that user beker was idle for over 16 minutes, and since the timeout was supposed to be 12, I fingered him to see if he was a netcom staffer. I found his .plan file contained a PGP 2.3a key. That infringes RSADSI's patents. That this is so has recently been confirmed by an independent inquiry by lawyers retained by MIT. The patent holder, RSADSI, has said that no only do versions of PGP except the soon-to-be-released 2.6 and the commercially sold Viacrypt version 2.4 infringe in the U.S., but posted keys and key servers constitute inducement to infringe and/or conspiracy to infringe. Given netcom's new user agreement, I'm user user beker will want to correct this. ----- end Mr. Sternlight has written to a party, not Mr. Beker satisfying the requirement for publication. The publication is "in print" making the analysis one of libel, and not slander. Mr. Sternlight has alleged wrongdoing by Mr. Beker. (Patent infringement) Mr. Sternlight is not (as far as I can tell) entitled to 3rd party interest protection, and is thus not excepted by this privilege as he has not responded to a request for information from Netcom. Mr. Sternlight has cited some source for his legal interpretation, the clarity of this source, or its existence at all will determine Mr. Sternlight's negligence in this matter. The language of the letter seems to suggest that attorneys from MIT have ruled THIS SPECIFIC user as in violation of the patent in question. I believe it would be difficult to show recklessness or intent to harm reputation in this instance. On the issue of harm to Mr. Beker, I have no information. Key in this regard will be the question of Netcom's handling of the situation, and what harm might have occurred to Mr. Beker. Mr. Sternlight may assert the defense of truth. I am not familiar with the patent case such to comment on his likely result here. Were the letter seen to claim that attorneys from MIT had ruled the user Beker specifically as an infringer, I believe he would lose this defense. Further the fact that Mr. Sternlight's letter seems to suggest that Mr. Beker is the subject of scrutiny by attorneys from MIT is a potentially independent issue of defamation. This assertion I feel is more likely to be found reckless. Overall the weakest aspect of the case is damages. It seems hard to show that there were significant reputational damages. Even if all the other criteria are satisfied, the lack of significant damages as a practical matter will likely derail any action. I believe this case _might_ satisfy the Rule 11 requirements for an action in federal court, the weakest part being the satisfaction of the (significant) minimum damages to entertain a federal diversity action. In any event, were a Rule 11 challenge to be survived, it would require a sympathetic judge,and some additional facts, particularly in the area of damages. The bottom line: Weak case on these facts. No damages apparent. -uni- (Dark), who is rusty on libel. -- 073BB885A786F666 nemo repente fuit turpissimus - potestas scientiae in usu est 6E6D4506F6EDBC17 quaere verum ad infinitum, loquitur sub rosa - wichtig!