Legal liability for techwr-l posts?

[Geoff Hart <Geoff-h -at- MTL -dot- FERIC -dot- CA>]

It occurs to me that the move from an "open, public discussion
forum" to a "paid subscription" forum changes something
fundamental about the list, and in a way that may have important
legal repercussions for both those who post messages and for the
listowners. Here's the problem:

Information posted in the form of an ongoing conversation, with no
payment exchanged for advice received (the current situation), is
difficult to construe as legally actionable (apart from libel and
related aspects of the law): Taking legal action against someone
under the current system would be like overhearing someone at a
party say that they're buying a Ford because of its quality, then
sueing the person because you bought a Ford and it broke down
regularly. Now let's change the context slightly: You go to a group
of car experts, and pay them $10 per year (or whatever) for their
advice: you buy a car based on this advice, and it's crap--or you
get hurt or lose considerable money as a result of the purchase. A
good lawyer could probably nail the expert for the equivalent of
malpractice: providing bad advice or service in exchange for money.

That's a bit subtle, but how about the following common techwr-l
situations: Someone asks you how to deal with their manager,
they take your apparently reasonable advice, and they get fired.
Someone asks you how to describe a procedure, they follow your
advice (whether well or poorly isn't important), and someone gets
injured as a result of following the procedure. Someone asks how
to do something tricky with Word, they follow your advice, and lose
several days work, thereby missing a crucial (thus expensive)
deadline. A Microsoft technical writer makes some off-the-cuff
statement that is misconstrued as being Microsoft's official position
on some important issue, and much havoc ensues (some people
change their company's whole help development strategy because
the writer says "HTML help is dead", others sue Microsoft because
a Microserf admits that "we know of Word's flaws, and figure that
nobody would ever bother taking us to court over lost time and
money").

So who's liable in these situations? I don't want to be a
scaremonger here, particularly given that I'm not a lawyer and that
I'm speculating based solely on a layman's limited knowledge of
liability law. My layman's guess is that in the vast majority of
cases, the person who implemented the advice is solely
responsible; at worst, that person and the person who gave the
advice would be jointly responsible to some extent. But in each of
the cases I've mentioned, a good lawyer could make a case for the
advice-giver being liable (e.g., consider the terms "reckless
endangerment", "willful negligence", "professional incompetence").
Consider how litigious Americans are reputed to be. Because
money is required to "purchase" the advice on the list, there is also
the issue of "fitness for purpose", which I believe is one of the
buzzphrases used in consumer law: if you pay money for
something that really isn't capable of achieving its intended
purpose, you can sometimes sue the manufacturer to recover
damages.

Where am I going with this? If we move to a paid-subscription
model for the list, I strongly recommend Eric and Deb get legal
advice on how to protect themselves... and us. As a preliminary
suggestion, each subscriber (as a condition for receiving the list
and being allowed to post) should sign a waiver along the lines of "I
agree that in exchange for sending and receiving mail on this list (i)
unless otherwise indicated, I am speaking solely for myself, and
not for my company, and (ii) that because the giver of advice is not
present to help me implement that advice, and is not fully aware of
all aspects of my work situation, that I accept sole responsibility
for implementing any advice received from this list." (FWIW, on the
advice of our Canadian lawyer, my employer uses something very
much like the latter statement in certain of our technical reports.
So I'm not speculating here without some basis in fact.) Going one
step further, and speaking in hindsight, I suggest that we
implement something like this soon even if we don't move to a paid
subscription model.

Bottom line: while I'd reluctantly agree to pay (say) $10 for list
membership, I would not accept paid list membership without the
protection afforded by something like my proposed legal waiver.

As for prices for the list: There are enough universities out there
that would be interested in hosting techwr-l that I'm completely
unwilling to pay a subscription simply for the privelege of moving us
to a commercial server. I won't change that position until we've
contacted several universities and proven to my satisfaction that
my assumption is wrong. I _am_ perfectly willing to pay Eric and
Deb to compensate them for their time, but that's another matter
entirely.

--Geoff Hart @8^{)}     Pointe-Claire, Quebec
geoff-h -at- mtl -dot- feric -dot- ca

"The text's out of joint, oh cursed spite/that I was born to set it
right."--Prince Hamlet, early Danish editor

 From ??? -at- ??? Sun Jan 00 00:00:00 0000=