bbsfaq03.006

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The following are suggestions that you should consider:

     1. Tell your callers what you will do and what you will
not do in your role as sysop and be sure to follow through on
your commitments to your callers. Give your users fair notice
when you decide to change your policies.

     2. Keep copious records as to the board's formal policies,
including when changes are made and any problems you may have
in enforcing rules. If you discover a caller violating the
rules, record the details of what has happened and put these
records in a safe place. Law suits sometimes are filed long
after an event happens. Three months later you might not
otherwise remember the incident.

     3. Put BBS disclaimers in a prominent location. Consider
using capital and/or bold letters to emphasize the risk of harm
callers may face from using your board. Get some form of
affirmative act from each caller that indicates they have read
the disclaimers -- this will be useful someday should you ever
need to show that the caller was aware of its terms. While this
does not have to be on paper, each caller should at some point
have to proceed through a screen in which he or she
acknowledges having read the disclaimers and agrees to them. In
an ideal world, your BBS software would create a log of this
event and store it permanently.

     4. Recognize that you can not disclaim certain legal
duties and do not put too much faith in any disclaimer -- you
can never be sure what will and will not be legally
enforceable. Consider the disclaimer as additional protection,
not your first line of defense.

     5. Finally, if some factual situation arises which has the
potential to harm your callers, react promptly to take control
of the situation. Think of your BBS as an extension of your
home and your callers as your guests. If you believe that there
is something or someone who may expose your callers to an
"unreasonable risk" of harm or loss, recognize the fact that it
is you who could be ultimately liable.

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[13.3.02] Breach of Contract

     Another very common type of civil suit is one based upon
contract law. In many ways a breach of contract case is similar
to a negligence case. Indeed, often a plaintiff will allege
both breach of contract and negligence claims in the same suit.

     Contrary to what some may think, there is no general
requirement that contracts be signed or that they be in
writing. One requirement of every contract, however, is
"consideration." You generally cannot be held liable in a
contract action unless you have somehow agreed to do something
for your callers AND your callers have agreed, as a
corresponding obligation, to do something for you.

     Note that a sysop who asks nothing from his callers is
unlikely to be faced with a contract claim. In such a situation
the callers cannot claim to have provided the sysop any
"consideration" sufficient to create a contract. One way a
sysop can reduce legal liability, therefore, is to run a "free"
board open to anyone who wishes to use it.

     Many sysops recognize the liabilities that may attach if
they enter into a contractual relationship with callers. In
order to avoid doing so they ask for "donations" instead of
payments. Be aware, however, that if you grant access to
special areas of your BBS to "donating" members or provide them
with special services, you may be creating a contract with
them. In such a situation, you give access to the restricted
area in return for the donation. The fact that the payment is
called a "donation" does not prevent it from being
"consideration" sufficient to support the creation of a
contract.

     Be aware also that consideration does not have to be in
the form of money. By way if illustration, consider the fact
that many boards have upload/download ratios whereby a caller's
download privileges are set proportionally to the number or
amount of data he uploads to the board. A good argument can be
made that the caller's uploaded data constitutes legal
consideration for a contract with the sysop. The sysop's BBS
receives the benefit of the uploaded data. In return, the
caller has the right to receive the downloaded data.        If
you and your callers have a contractual relationship, it is
important for you to recognize what your obligations toward
your callers are. For example, if you tell callers that mail
dropped off on your board will be uploaded to a network at
least four times a day, do not be surprised if users come to
rely upon your representation and begin to consider it part of
the services you contractually agreed to provide to them. If
you accept payment from callers for a month of BBS access, you
have an obligation to see that the board, in fact, remains open
for that month.

     As noted, one way to avoid liability is to avoid entering
into any contractual arrangements with callers. A better
approach, however, is to deliberately enter into a contractual
relationship with your callers, being very specific about what
obligations you will and will not assume and what benefits you
expect your callers to provide to you. By stating up front what
rules govern the use of your board and what obligations you are
willing to take on, and by making clear to callers that these
rules are a condition of using your board, you create the
"consideration" necessary to make a contract.

     An example of one possible caller contract is found in the
SYSLAW book mentioned in the introduction above. There is no
magic formula, however, for creating a formal caller contract.
Before investing in a BBS, call around and take a look at what
other sysops require from their callers. At a minimum, a
"caller contract" should include:

     (1) a statement recognizing that your BBS receives some
tangible benefit from callers. Remember, consideration must run
in two directions for a valid contract to exist. If your
callers provide payment to you, this is sufficient. If you do
not charge callers, you have to be more creative in stating
what it is that your board receives. If you do not charge
callers, caller "participation" in your board may be sufficient.

     (2) an indication that callers must comply with the rules
of the BBS as a condition of using the board;

     (3) a statement that the rules may be changed as the sysop
feels necessary;

     (4) a provision that caller questions about the agreement
will be answered by the sysop and changes to the agreement will
be made if necessary;

     (5) a description of the BBS and its various services and
areas, including a statement indicating that these may be
changed at the sysop's discretion (see below for special
provisions regarding "adult" areas);

     (6) the costs to the caller of using the system, including
any "upload/download" ratio requirements;

     (7) a statement regarding how electronic mail will be
treated (see below);

     (8) an indication that the law governing any dispute will
be the law of the place where the BBS is located (as opposed to
the law of the place where the caller is located);

     (9) notice that you reserve the right to shut the BBS down
and refund any payments made by callers, as well as a provision
giving notice to callers that you reserve the right to ban
callers for violating the board's rules as you deem necessary.

     In creating a caller contract, keep in mind that plain
language that your callers can understand is far better than
any "legalese." If your callers are incapable of understanding
the language of your agreement, it is possible that the
agreement would not be enforced in your favor, should you ever
need to rely upon it.

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[13.3.03] Viruses

     Viruses present one of the most well-known problems facing
the on-line community. These programs are often written to
produce unexpected or disastrous results for an unwary user
such as erasing the user's hard drive. Hiding viruses inside
other programs and then uploading the contaminated programs to
a BBS is a favorite way of spreading a computer virus.

     Fortunately, there are programs that search for, and then
eliminate, most computer viruses. Many BBS sysops provide, as a
service to callers, basic virus scanning. This service allows
callers to exchange programs with some degree of protection.

     Scanning for viruses is probably a good idea. Many callers
expect it and it is possible that the law could hold you to
such a duty. What is not a good idea, however, is
misrepresenting to your callers the extent of what can be done
to protect them from such programs. Viruses are often written
with the goal of avoiding detection. There is always a degree
of risk that scanning may fail and you should be up-front with
your callers about this possibility.

     To protect yourself, consider the following suggestions:

     1. Scan for viruses regularly and do not post programs for
general use until they have undergone a virus scan. Do not
assume that commercially produced programs or programs
distributed on CD ROM are virus-free.

     2. Let your callers know that you cannot guarantee that
programs on your board are safe. Disclose prominently that
there are risks that the virus scanning program you use may
miss something harmful.

     3. If you are unwilling or unable to scan for viruses,
make this fact clearly known and include it in your contract
with callers.

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[13.3.04] Public Messages and Defamation

     A defamation is a false statement made publicly which has
the effect of harming another's reputation. Sometimes
defamation is referred to as "libel" or "slander".

     While the First Amendment of the U.S. Constitution
guarantees the right of individuals to say almost anything they
desire, the First Amendment does not always protect a speaker
from being held liable for the harm caused by his or her
speech. Thus, a person whose reputation has been wrongly
injured may bring suit against those who "publish" the
statement, even if the "publisher" is not the original speaker.

     Note that a "publisher" does not have to "print" the
defamation. For example, radio and television stations have
been sued for "publishing" defamatory statements. You may be
surprised to find that defendants can be sued for defamation
even when the statements made by the defendant are reported in
the form of an accurate quotation of another's words. Put in a
slightly different way, accurate "re-publications" of a
defamatory statement may create liability for the re-publisher.

      There are several defenses a publisher of a statement may
have against a plaintiff claiming defamation. For example, the
U.S. constitution protects a publisher from law suits by
"public figures" to a certain extent. Those who have
deliberately become "public figures" may sue for defamation
only if able to show that the defendant published the statement
with actual knowledge that the statement was false or with
"reckless disregard" of whether it was false. This
constitutional defense protects defendants from being sued by
famous people for things said about them reasonably believed by
the speaker to be true.

     Notice that a defendant who makes defamatory statements
about someone who is not a "public figure" does not get the
same constitutional protections. In other words, you can be
liable for making false statements about a private person, even
if you believed the statements were true when you made them.
Obviously, you must be careful what you "publish" on your board
about anyone whose reputation might be harmed.

     There are other important defenses a "publisher" may have.
Simple name-calling is not defamatory as a general rule, even
when it is offensive. Such statements are not thought to bring
actual harm to a person's reputation.

     A defendant who can show that the statement alleged to be
defamatory is truthful will also prevail in a defamation suit
because a defamation is, by definition, an untrue statement.

          Another useful rule to keep in mind is that the dead
cannot be defamed, at least not in most jurisdictions.

     There are many other defenses. The savvy sysop will not,
however, rely upon legal defenses to protect herself against
defamation suits. It may cost nearly as much to defend a
defamation suit as it would to settle a case with a caller or
other third person. It is far better to prevent yourself from
becoming a legal target in the first place.

     In order to protect yourself from a defamation claims
before the fact, consider these suggestions:

     1. Think carefully about the two types of defamation risks
you face as a sysop before you act. These are the risk that you
may: (1) directly defame a caller or some other person, either
through a deliberate or carelessly made statement and (2)
re-publish a defamatory statement initially made by one of your
callers or someone else. Passing on a false rumor can amount to
actionable defamation.

     2. Actively discourage callers from "flaming" one another
in public message areas. Some callers take great pride in using
sharp wit to make others look stupid. Such comments quickly
deteriorate into personal attacks. Personal attacks can quickly
deteriorate into libel.

     3. Keep in mind that your callers may not be who they say
they are and that some callers may be using aliases. This means
that you must be particularly careful. Posting a public notice
that you have banned a caller who you name because "he has been
uploading child pornography" may seem like a perfectly
reasonable thing to announce a system bulletin, until it turns
out that the person you have named has never logged onto your
board and that an imposter is the real culprit. In handling
sensitive matters, discretion is always the best advice.

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[13.3.05] E-mail, Privacy, and ECPA

     Unlike public messages, callers who send e-mail to
specific individuals do not expect their messages to be
publicized or read by anyone but the intended recipient. Many
sysops are concerned, however, that without monitoring caller
e-mail they cannot be sure that users are not violating the law
and exposing their board to legal risk such as that faced by
the sysops in the Operation Sun Devil raids.

     Before you make any policy for your BBS involving
electronic mail, you should be aware of federal legislation
called the Electronic Communications Privacy Act or "ECPA."
ECPA is a federal law which governs electronic mail in all 50
states.

     Under ECPA, BBS co