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Martin
11-11-2005, 11:51 AM
I have a situation and would like guidance to determine what to do next.

I belong to a private industry email list. The list administrator and
myself have had some disagreements and discussion over private email. The
discussions have gotten a little heated at times. At one point, he took one
of my private emails, modified it and posted it to the list publicly, for
everyone to see. The modification was such that it looked like I was the
one posting this message to the general audience. This is quite damaging
because it is a professional list and I was made to look like a lunatic.
While strong messages might be OK privately, one wouldn't necessarily post
something like that to a list read by thousands in one's industry.

This, to me, is like falsifying a signature. The message, to the average
reader, looks as though I had sent it. Those qualified can read the message
header and see that it was re-directed. However, 95% of the readership
wouldn't know to do this or even how to interprete the data.

The fact that this guy is the administrator must also hold him up to a
higher standard. He has the technical means and knowledge to do as he
wishes with just about anything on that list.

How is this classified, legally? Any resources on the WWW I could look
over?

Thanks,

-Martin

Jonathan Sachs
11-13-2005, 01:47 PM
On Fri, 11 Nov 2005 13:51:16 -0500, "Martin" <0_0_0_0_@pacbell.net>
wrote:

I belong to a private industry email list. The list administrator andmyself have had some disagreements... At one point, he took oneof my private emails, modified it and posted it to the list publicly, foreveryone to see. The modification was such that it looked like I was theone posting this message to the general audience. This is quite damagingbecause it is a professional list and I was made to look like a lunatic....How is this classified, legally? Any resources on the WWW I could lookover?

Legally, this looks to be like a fairly conventional defamation case.
(Technically it may be called libel, which is simply a defamation that
is published in written form.)

Defamation is defined differently in different states, but most of the
definitions are quite similar. The elements of defamation typically
are: (1) a defamatory statement (2) which is published to third
parties, and (3) which the publisher knew or should have known was
false.

Now, as to what you should do: I'm not your attorney, I don't know all
the facts, and I won't try to give you legal advice, but I will tell
you what I would do if I were in your situation.

First, assuming I was not an attorney myself, I would consult with an
attorney who has experience with defamation actions, describe the
situation, and answer any questions he or she has. The attorney should
be able to give you a rough idea how strong your case is and what
difficulties you may foreseeably encounter if you pursue it. Many
attorneys will provide this type of initial consultation at no charge.

Second, I would decide what I want to do if I can't get satisfaction
in step three.

Third, I would contact the list administrator and describe what has
happened from my point of view. I would explain why it is very
damaging to me, and request that the list administrator publish a
complete explanation and retraction in the list. If the defamatory
information has spread further I might have to request that the
retraction be published elsewhere as well, but I would request this
only if absolutely necessary, because it is likely to make an
agreement much harder to reach.

Further, I would explain that I believe I have a cause of action for
defamation, and I may feel compelled to file suit if my concerns are
not satisfied, but if the list administrator remedies the situation as
requested I will consider the matter closed.

I would do all this in a very courteous, nonconfrontational way --
regardless of how I feel inside! I would do this because it is
generally much better to swallow my gall and avoid a lawsuit than to
let my emotions have their head and have to fight one, even if I
ultimately win. That is particularly true of defamation suits, which
tend to be long, nasty, and expensive.

If the list administrator agrees to repair the damage, and does so,
well and good. If not, do what you decided to do in step two. If you
go back to the attorney. he or she probably will write a letter which
essentially repeats the things you said on your own account, and will
escalate from there if necessary.

My email address is LLM041103 at earthlink dot net.

Martin
11-15-2005, 02:47 PM
> Legally, this looks to be like a fairly conventional defamation case.
(Technically it may be called libel, which is simply a defamation that is published in written form.)

It's interesting that you think that this falls under defamation rather than
forgery. If I posted a message to this group that was made to appear as
thogh you had sent it, wouldn't that be forgery rather than defamation? The
contents of the message could be "Hello world" in other words, nothing bad.
The crime, if you will, being the forgery or identity theft.

Thanks,

-Martin

Jonathan Sachs
11-17-2005, 01:01 PM
On Tue, 15 Nov 2005 16:47:13 -0500, "Martin" <0_0_0_0_@pacbell.net>
wrote:

Legally, this looks to be like a fairly conventional defamation case....It's interesting that you think that this falls under defamation rather thanforgery....

With respect, I don't "think" it is defamation, not forgery; I am
stating a legal fact, that it is defamation, not forgery.

I defined defamation in my previous message. If the relevant facts are
substantially as the OP stated, the list administrator clearly has
defamed him.

"Forgery" is defined as altering the writing of another, or falsely
representing a writing as that of another, with intent to defraud. To
"defraud" is to knowingly make a false representation to another, with
the intention that the other rely on it to his or her financial
detriment. (Both definitions are loosely adapted from Black's Law
Dictionary.)

From the facts that the OP has disclosed, the list administrator has
done nothing that shows intent to defraud him or anyone else. Without
intent to defraud, there is no forgery.

Even supposing additional facts that would support a claim of forgery,
pursuing a forgery theory probably would not serve the OP because it
would not further his goals. If he's a typical (rational) victim, he
wants the damage to his reputation to be undone, so far as that is
possible; and if the other party can't or won't do that, he will find
some consolation in a whopping award of damages.

Defamation is a tort. Threatening or filing a suit for defamation is
likely to help the OP realize one or the other of his goals.

Forgery is a crime. If some authority could be persuaded to prosecute
it (unlikely) the forger could be fined or imprisoned, but that would
be meaningless as far as the OP's probable goals are concerned. It
actually would be counterproductive, to the extent that being in
prison would impair the list administrator's ability to operate the
list or earn money to pay a civil judgment!

My email address is LLM041103 at earthlink dot net.

Martin
11-19-2005, 09:35 AM
> With respect, I don't "think" it is defamation, not forgery; I am
stating a legal fact, that it is defamation, not forgery.

Hmmm. Forgive me for being dense.

Example:

You send me an email privately. The subject is "Hello" and the content is
"Hello Martin".

I take that email and, through technical manipulation, post it to this group
as though it had come directly from you. Without forensic work there is no
way anyone would realize that it did not come from you to the newsgroup. As
far as everyone reading this ng is concerned, you posted it publicly for
everyone to see.

Isn't that "altering the writing of another, or falsely representing a
writing as that of another"? The "intent to defraud" part would be gained
from context, of course. The fact that I would go through the work and
trouble to alter the message (your "writing") to appear as though it had
come from you to the list...

No?

To take it to an extreme. The message is completely empty. No subject. No
content. Just an empty private message altered and posted publicly to
appear as though it was originally posted for public consumption. How can
that be defamation and not forgery?

Maybe I am getting the terms mixed-up due to common definitions rather than
the legal?

-Martin

Jonathan Sachs
11-23-2005, 06:59 AM
On Sat, 19 Nov 2005 11:35:05 -0500, "Martin" <0_0_0_0_@pacbell.net>
wrote:

You send me an email privately....I take that email and, through technical manipulation, post it to this groupas though it had come directly from you....Isn't that "altering the writing of another, or falsely representing awriting as that of another"?

Of course it is. But...

The "intent to defraud" part would be gainedfrom context, of course.

I'm not sure why you said "of course." If you could prove intent to
defraud, then you would have the elements of forgery. But you seem to
be implying that intent to defraud can be inferred from the bare act
of publishing a falsified writing, which is a leap of reasoning that I
cannot follow.

Intent can be inferred from acts where warranted by the facts of the
case, but I see no such facts here.

Maybe I am getting the terms mixed-up due to common definitions rather thanthe legal?

Possibly, it's not clear to me what definition of "defraud" you are
using. In this context the appropriate one is the one I described in
my last message.

My email address is LLM041103 at earthlink dot net.

cbreitel
11-23-2005, 06:59 AM
Jonathan Sachs wrote:
Defamation is a tort. Threatening or filing a suit for defamation is likely to help the OP realize one or the other of his goals. Forgery is a crime. If some authority could be persuaded to prosecute it (unlikely) the forger could be fined or imprisoned, but that would be meaningless as far as the OP's probable goals are concerned.

To clarify, forgery is only a crime in most states when the alleged
"forgery" takes place in the context of a government document or
communications to government agents.

The simple act of faking someone's signature without more (e.g., a bad
check) is not by itself a crime. Same is true of faking someone's email
identity or slightly modifying someone's email to make it look like it
says A when in fact it is saying B. The poster's hypothetical may or
may not involve defamation but it certainly does not involve the crime
of forgery.

And again, there is no tort of forgery.

Jonathan Sachs
11-26-2005, 02:08 PM
On Wed, 23 Nov 2005 08:59:03 -0500, "cbreitel"
<charlesbreitel@yahoo.com> wrote:

To clarify, forgery is only a crime in most states when the alleged"forgery" takes place in the context of a government document orcommunications to government agents.

Do you have authority for that? It would be most surprising, since
forgery originated as a common-law offense which had no such element.

It certainly is not true in Illinois, nor is it true in California,
Texas, or New York, three additional states which I checked after
reading your post. In any of those states, falsifying any type of
writing or document (including e-mail) constitutes forgery if the
required intent to deceive and defraud is present.

I gather that some jurisdictions define forgery to include falsifying
a government document such as a driver's license without the element
of intent. I would be astonished if any jurisdiction limits it to that
situation, though.

My email address is LLM041103 at earthlink dot net.

cbreitel
11-28-2005, 11:27 AM
Jonathan Sachs wrote:
Do you have authority for that? It would be most surprising, since forgery originated as a common-law offense which had no such element. It certainly is not true in Illinois, nor is it true in California, Texas, or New York, three additional states which I checked after reading your post. In any of those states, falsifying any type of writing or document (including e-mail) constitutes forgery if the required intent to deceive and defraud is present.

You contradicted yourself and proved my point at the same time. Your
own post concedes that forgery without the element of an intent to
defraud is not a crime, and that is exactly my point.

My initial post (that you edited by cutting out the second paragraph,
which was important) stated that forgery is a crime in the context of
misrepresentations in government documents, AND that the "simple act of
faking someone's signature without more (e.g., a bad check) is not by
itself a crime". I used the words "without more" for a reason.

The poster in this instance has suggested facts under which a supposed
"forgery" has been committed but with no proof of an intent to defraud
or any other alleged facts. Such facts could conceivably constitute the
civil tort of defamation/libel but they are not anywhere close to the
crime of "forgery".

Jonathan Sachs
12-01-2005, 11:33 AM
On Mon, 28 Nov 2005 13:27:32 -0500, "cbreitel"
<charlesbreitel@yahoo.com> wrote:

Do you have authority for that?... It would be most surprising, since forgery originated as a common-law offense which had no such element. It certainly is not true in Illinois, nor is it true in California, Texas, or New York, three additional states which I checked after reading your post. In any of those states, falsifying any type of writing or document (including e-mail) constitutes forgery if the required intent to deceive and defraud is present.You contradicted yourself and proved my point at the same time. Yourown post concedes that forgery without the element of an intent todefraud is not a crime, and that is exactly my point.My initial post (that you edited by cutting out the second paragraph,which was important)...

You don't seem to understand that you made two different statements.
Your second paragraph said what you claim. I omitted it because I have
no quarrel with it. Your first paragraph said that "forgery is only a
crime in most states... in the context of a government document or
communications to government agents." I questioned that, and still do.
If you have authority for it, I hope you will show us.

My email address is LLM041103 at earthlink dot net.

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