Can we be sued? 1

[petermeachem]

Not sure if this is the correct forum, but here goes anyway.

Can we be sued for results of advice we have given here or does the fact that no money passes mean there is no contract, and therefore no case.

I'm in England, where things are slightly different, but dragging people off to court seems to be a popular pastime in the States.

I am asking because there is a guy in the Access forum that I am worried about. He is a volunteer in a Hospital, and is fiddling about with a database which contains patients records and treatment plans. His knowledge of Access is clearly limited. My reply was that he should not even be thinking of doing that sort of work. Someone else said much the same, but is still helping him. Suppose because of his (the question asker) ineptitude, and poor understanding both of Access and our replies, he screws up the database so the unfortunate patients get the wrong medication, or too much, or at the wrong time? What is our legal position?
Peter Meachem
peter@accuflight.com

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[sleipnir214]

Wullie, that disclaimer will not stop you from getting sued in a lot of places. In the U.S., at least, there are some rights to redress that cannot be waived.

And even if a judge finds that you are protected under the umbrella of that disclaimer, you will still have had to go to court. ______________________________________________________________________
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[Wullie]

Peter,

A disclaimer, no matter how simple does cover you legally, do you honestly think that a site of this size has not covered itself and its users from possible action?

Microsoft have sold their software, totally different situation. If you charge someone for advice, then yes you could be sued.


sleipnir214,

Yes, you have certain rights but not when you are expressly told that the information is provided "as is". This means "take it or leave it, we give no warranty". If a user decides to use the information, then that is up to them, if not, same goes.

The information on this site is in no way provided as correct, it is provided on the basis that the user decides whether or not to use it.

I had this discussion with a lawyer about a site that I was putting up and it was providing free live support to people. The info provided through that chat link is provided "as is" and legally we covered our backs.

To take it further, you provide no personal data when you sign up for TT and therefor this also makes it more difficult for someone to sue you. You cannot sue a handle, for that is all you are on here.

I have links in my signature that point to my address, phone number etc, but who is to say that I am not just any user that has no affiliation with those sites? It is so easy to include another persons site in your signature.

Hope this helps Wullie

sales@freshlookdesign.co.uk

http://www.freshlookdesign.co.uk

http://www.searchit-now.co.uk

 

[petermeachem]

This is the Ernst & Young disclaimer. I assume this is worded properly. Perhaps tecumseh would like to comment?

Liability Disclaimer
In preparing this site, we have endeavoured to offer current, correct and clearly expressed information. However, since inadvertent errors can occur and since relevant laws and regulations often change, the information may be neither current nor accurate.

Further, the information contained on this site is intended to provide general guidance on matters of interest. Nothing on this site constitutes professional advice, nor does any information on this site constitute a comprehensive or complete statement of the issues discussed.

No action should be taken or omitted to be taken in reliance upon information on this site. Users should obtain specific professional advice concerning specific matters and Ernst & Young UK accepts no responsibility for any loss resulting from reliance on any information contained on this site or in respect of any information on any other sites to which this site may be linked. None of the above shall be taken to exclude liability for fraud or for negligence causing death or personal injury.

Peter Meachem
peter@accuflight.com

 

[CajunCenturion]

Wullie,
I think you are missing the point. The disclaimer will not prevent you from being sued. It may prevent the defendant from winning the suit, but it doesn't keep you from being sued.

Contracts, waivers, and disclaimers have their validity tested thru the litigation process. In this environment, I think someone would be hard pressed to actually secure a judgement against a contributor, but nothing prevents the defendant from trying. Therefore, you are forced to defend yourself, and you could, and should, use the disclaimer as your first line of defense.


Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[Wullie]

Hi mate,

I understand what you are saying.

But, what person or lawyer (Yes, I meant to keep them seperate ) is actually going to even attempt a case of this type?

Someone who uses this information in a situation where lives are at risk or any other high risk job, would be held responsible for any action that they take, not you.

If someone knows that they will not win, why would they bother going to court in the first place?

The disclaimer would cover me, I know that for sure. It may not cover all users but I cannot comment on that.

The disclaimer would not stop someone attempting to sue you, but nothing would or possible could. There is not a solution to that, and I cannot see there ever being one that would work either.

Hope this helps Wullie

sales@freshlookdesign.co.uk

http://www.freshlookdesign.co.uk

http://www.searchit-now.co.uk

 

[CajunCenturion]

I have no problem with your statement separating people and attornies :-D
In answer to your question,

If someone knows that they will not win, why would they bother going to court in the first place?

As I stated in a previous post in this thread (I've copied it because the thread is so long)

I personnally think the reason for that is that the cost of defending oneself is extremely high, and its often cheaper to settle for a small amount, than to spend a high amount of money to prove your innocence. That being said, the lawyers know that its going to cost someone (hypothetically) $20,000 to defend themselves (lawyer fees, lost revenue, etc), so they enter a suit for $50,000, and agree to settle for $10,000. The defendant has in some way "saved" 10,000, and the plaintiff won $10,000. And the attorney goes to the bank with his cut.

See also FXWizard's post Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[sleipnir214]

Every day in the United States, people who were not wronged sue insurance companies because their lawyer knows the company will often settle just to not have to go to court.

If it's gonna cost $20000 to win the suit, but only $10000 to settle, then the company will settle. As far as the company is concerned, they just saved $10000.

The plaintiff's bad behavior is rewarded by an unearned, quick check for $6000.

The lawyer's bad behavior is rewarded by the fact that he made $4000 for just writing a couple of threatening letters. There's a high profit margin there.

The real problem is when all this rewarded bad behavior falls on someone whose pockets are not as deep as those of an insurance company. ______________________________________________________________________
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[Wullie]

Ok...

I understand where you are all coming from now.

I am the the UK so any costs are paid by the loser, so therefor I have nothing to worry about when it comes to situations like this. A person suing me has the knowledge that they are going to pay and not me.

I will just sit here and be quiet...

Hope this helps Wullie

sales@freshlookdesign.co.uk

http://www.freshlookdesign.co.uk

http://www.searchit-now.co.uk

 

[sleipnir214]

Wullie,
That is where my last posted question comes in.

Suppose you give some advice, the person applies it, then his server blows up. You're in the U.K. The company is in the U.S.

He decides to sue you. In the U.S. In absentia. You know all about it -- his lawyers keep sending you regular missives.

You apply the advice of the old joke: "Sire, they're hanging you in effigy." "Well, that's one town I'll steer clear of." You ignore the whole thing. A few years go by.

Then UUnet offers you a juicy job in the U.S. You will have to live in Massachusetts for several years to take it. You take the job, move to the U.S., then word gets around to the plaintiff that you're in-country. You are arrested on a bench warrant for not paying the judgement against you.


We live in a mobile, multinational world. Look at Dmitry Sklyarov. He ran afoul of the United States' Digital Millenium Copyright Act, even though he is Russian, his company is in Russian, and he produced the program in question in Russia. Poor bastard comes to the U.S. to give a talk at a conference and Adobe has the FBI arrest him for breaking an abomination of a law that should never have been written in the first place. ______________________________________________________________________
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[BeckahC]

Just curious... what happens if it were the other way around - the person being sued is in the US and the person suing is in UK?

I think that here in the US anyone will sue anyone for nearly anything.... there are even cases where your insurance will insist on suing even if you do not want to! I once knew someone who had to sue her boyfriend (who had no $$$ and was living with her and their children) before she was allowed $$ and medical care for her children! She was legally required to sue first! Our system seems to encourage lawsuits!... just an observation... BeckahC

 

[sleipnir214]

Either way.

The problem is that in any activity on the internet, be it advising someone on Tek-Tips or running a scam auction on eBay, can span legal jurisdictions.

If I mug someone, it's pretty easy to figure out jurisdiction. It's where I did it.

But if I'm running a scam auction on eBay, I could be a user in Timbuktu using servers in San Jose, California, to rip off a guy in Germany. Where did the crime take place? Where does Dieter go for redress? ______________________________________________________________________
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[Wullie]

sleipnir214,

LOL.. I am just going through this exact thing just now..

My mail server was being used for an attempted scam on E-Bay.

I am in the UK, the user is from Austria and I have no idea where to turn..

E-Bay seem to have turned a blind eye to the situation, I probably will as well now. Wullie

sales@freshlookdesign.co.uk

http://www.freshlookdesign.co.uk

http://www.searchit-now.co.uk

 

[svanels]

My thoughts:

Peter if you have a lof of (or too much) money, somebody can try to sue you.
About the girl suing her boyfriend, if I was the guy, I would pack my things, then she could sue the insurance company for braking up their relationship. Certinly they have more $$$ then the boyfriend. Steven van Els
SAvanEls@cq-link.sr

 

[petermeachem]

I certainly haven't got a lot of cash, but I do have a very nice, very old house.
I don't know how I could explain to my family that we had to sell the house because I was being sued for something I typed here. Peter Meachem
peter@accuflight.com

 

[sleipnir214]

Wullie,

Wow. I just pulled those elements out of my fetid imagination. I guess in this case, truth is as strange as fiction.

I hope you got wind of your server's involvement before anthing got too ugly in the scam. ______________________________________________________________________
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[Wullie]

Hi mate,

Yes, I did get there before anything actually went too far.

I routinely scan both the smtp logs on the server and also any new accounts that have been created. This user decided to run a few adverts from seperate accounts that used freshlookdesign.co.uk email addresses.

Due to a problem on my server at the time this happened, I could not get the IP of the user that set up the accounts, so there was really nothing that I could do apart from change the password for account access and notify the users that requested info about the ads. I also then set-up autoresponders to automate the task of notification to users that requested information on the products.

The user slipped up after that. He went onto E-Bay and changed his e-mail address, the account on my server was sent an e-mail with the details of the user attempting to make this change. I now had his IP address etc.

I was notified by a few of the other users that he was also using other addresses outwith my server so I contacted the ISP abuse departments and made them aware of it.

I collected all of the info I had on the user and sent it to the E-Bay fraud department and to date have not received any reply.

This was over a week ago now and to me it looks as though E-Bay do not seem to be interested in this matter.

If a company that size is not going to take action, then I am not going to do anything either, I am a tiny fish in a very large pond here.

BTW.. Just to top it off, you would not beleive the amount of users that mailed me to ask if I had any other addresses for this user as they still want to continue with the purchase. Some people don't seem to have any common sense!! Wullie

sales@freshlookdesign.co.uk

http://www.freshlookdesign.co.uk

http://www.searchit-now.co.uk

 

[sleipnir214]

For yet another example of people suing for no damned good reason, this one from Reuters:

http://www.reuters.com/news_article.jhtml?type=humannews&StoryID=1156355

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[sleipnir214]

Wullie, if sense were actually common, we would have a single-word term to describe the phenomenon.

Or, to quote Robert Anson Heinlein:
Never underestimate the power of human stupidity.


I took over management of an FTP server where the former manager didn't bother to lock out writing by anonymous users. When I shut down that feature, I actually got nastigram emails from some of the wackadoos who'd been storing pirated software on the server. One actually demanded (literally, demanded. He used that word.) that I allow him access to "his" files and that if I did not, he would take "drastic measures" [insert ominous organ music here].

I sent a two sentence reply: "Sir, they're my files now. If you're feeling froggy, go ahead and jump." Then I sent excerpts from my FTP logs and a copy of his original email (with headers) to his ISP.

Oddly, I never heard from the dumbas gentleman again. ______________________________________________________________________
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[SteveTheGeek]

I agree with Sleipnir214, in that 20 paces turn and fire is an excellent way of solving (or preventing) disputes. I too am an excellent shot with a pistol. Which actually brings me to my main point, which is: there is no perfect conflict resolution system, and every existing one tends to favor one party or another. As it stands now, it favors parties with weak cases, but the likeliest method of fixing that (loser paying winner's fees) would result in it favoring parties with large bank accounts. On the whole, I prefer the present system; large bank accounts already have enough advantages.

The internet does present (as I've alluded to in the spam debate) an enormous jurisdiction problem that we're going to have to solve sooner or later. Perhaps dual citizenships: Internet and <insert your country here>?
-Steve

 

[sleipnir214]

SteveTheGeek:

Citizenship is not the problem, except in extradition. The problem is that the law has in no way caught up with the realities of crime on the internet. ______________________________________________________________________
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