Freedom of speech and terms of forums...

[ubbuser]

Hi I was wondering while looking at our forums, in US there is this constitutional thing called freedom of speech. If we put a "we reserve the right to delete any message or remove any member's membership for any or no reason whatsoever" and users who sign up AGREE to it by pressing the agree button does that cover our liablity if some jackass wants to threaten us with a lawsuit under the "freedom of speech clause" ?

I mean if he/she posts some message to anyone on the forum saying "I think you suck!" and we delete the message. Then we ban this user. Then this user walks in again with another account and posts a message about this clause above.... what's our liability?

I will consult our lawyer but I want to know opinions from other forum admins about this stuff. Of course I am not soliciting legal opinion here

[Username]

I don't totally understand your question, but the right to free speech means that the government can't restrict what you say. It doesn't mean that private companies can't restrict what you say. The exception could possibly be if a specific private company had a monopoly on some sort of media, or something similar. Only huge companies like ATT or GE would ever have to even think about those issues.

The first amendment protects you from the extremists in the government, not from vB moderators.

[tubedogg]

Your users do not (well, should not) have any expection of free speech on your forum. As a private entity or company, you are not bound by the freedom of speech clause on your own website. If you were to tell people they couldn't say anything about you in another publication, that's another issue, and you can't do that (unless it's slander/libel) but on your site there is no expectation of freedom of speech. No matter how much your users will say there is when you delete your first message.

[ubbuser]

Yes that is what's my understanding of that law also. Thanks for clearing it up.

Plus how far does the agreement on the forums go to protect your liability?

[chrispadfield]

Originally posted by ubbuser
Yes that is what's my understanding of that law also. Thanks for clearing it up.

Plus how far does the agreement on the forums go to protect your liability?

Generally not at all. Disclaimers are pretty much worthless in courts of law, if you have, for example a slanderours post on your forum you can't use the defense that your agreement says that anything can be posted if you are asked to remove it. You can't just make up your own laws that somehow supercede the actual laws if you see what I mean.

[rylin]

Originally posted by chrispadfield


Generally not at all. Disclaimers are pretty much worthless in courts of law, if you have, for example a slanderours post on your forum you can't use the defense that your agreement says that anything can be posted if you are asked to remove it. You can't just make up your own laws that somehow supercede the actual laws if you see what I mean.

you can however state that the posts (the copyright & the thoughts/opinion inside it) belongs to the user posting it, hence you are far from totally responsible.

That, along with the "we-can-and-will-delete" part usually covers you greatly
same thing goes for eg. yahoo/geocities.. they aren't responsible for the content on any of the sites, but they can & will remove it if they see a problem with it

[chrispadfield]

That is the one thing that is important, if you say that by posting then you are transfering the rights of the post over to the board then you can refuse people when they ask you delete their own posts for example. You would need to check up exactly how to phrase it but I doubt your members would appreciate it

[tubedogg]

Originally posted by chrispadfield
for example a slanderours post on your forum you can't use the defense that your agreement says that anything can be posted if you are asked to remove it.

Actually that might not be correct if you are based in the US. There was a case involving AOL who was notified of a post with child porn or something and they didn't remove it. They got sued by some lady in Florida and they won, they were found not responsible for it even though they didn't remove it after being notified of it.

The major thing to keep in mind is your moderation stance. If you don't do any pre-moderation, you are pretty much shielded from liability. If however you do any pre-moderation, before the posts are made public, you are pretty much without a shield.

[chrispadfield]

Um, those two points you made contradict. Firstly you say that even if there is slander and you know about it you are ok but secondly you say that if you know about (because you pre moderate) then you are not ok... got to be one or the other.

I don't know about the case in the US, I imagine they lost because the material was found to be not slanderous but I don't know. In the UK Demon Internet lost a case for refusing to remove messages sent to a newsgroup they carry so perhaps the law is just different.

[MattR]

We've discussed this before. Do a search of these forums and I'm sure you'll find our discussions.

But remember, once you start censoring (e.g. moderating) your forums you are liable for every post, moderated or not. To put it another way, if you moderate a single post you're now liable for all of them.

So the bottom line is:
If you moderate posts, and someone posts a libellous thing, you had better remove it if the libel-ee asks you to, because at this point it is YOUR butt on the line.

If you do not moderate, you are covered (at least in the US) by what is called 'common carrier'.

http://www.cybertelecom.org/notes/def.htm

Common Carrier
47 U.S.C. § 153(h)(1991) "Common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

Primary sine qua non of common carrier status is a quasi-public character, which arises out of the undertaking to carry for all people indifferently; particular services offered need not be practically available to the entire public and specialized carrier whose service is of possible use to only a fraction of the population may nonetheless be a common carrier if he holds himself out to serve indifferently all potential users; it is not essential that there be a statutory or other legal commandment to serve indiscriminately, rather it is the practice of such indifferent service that confers "common carrier" status. --National Ass'n of Regulatory Utility Com'rs v. F.C.C., 533 F.2d 601, 174 U.S. App. D.C. 374 (1976).

From that same page:

Content providers make information available on "servers" connected to the Internet, where it can be accessed by end users. Major content providers include Yahoo, Netscape, ESPN Sportszone, and Time-Warner's Pathfinder service." In re Federal-State Joint Board on Universal Service, Report to Congress, FCC 98-67 ¶ 63 (April 10, 1998).

So, when you do not moderate you are 'indifferent' and are protected from liability (I am not a lawyer so always good to check up). However from reading the entire definition of Common Carrier even requiring users to register in order to post could be viewed as discriminitory and remove you from common-carrier protection (and place you in private-carrier). Perhaps if you didn't require a valid e-mail account it would be non-discriminitory.

[tubedogg]

I did some searching and the case I was thinking of didn't involve a public post, it involved a private email between two people, both on AOL, and complaints were made about one, who was selling child pornography. Even though AOL didn't do anything (e.g. remove his account) they weren't responsible for the sales of child pornography. That doesn't apply here, I must've been thinking of something else.

Originally posted by chrispadfield
In the UK Demon Internet lost a case for refusing to remove messages sent to a newsgroup they carry so perhaps the law is just different. [/B]

As Matt pointed out, here in the US, I doubt that Demon Internet would have lost. So long as there is no moderation you are generally on firm ground for refusing to remove something. At least in the US.

[Jake Bunce]

i just laugh at people who say they're going to sue me over something on my forums. i have never paid attention to the legalities of this sort of thing. the point is that i have never had anyone actually take legal action, they just like making empty threats. this may get me in trouble some day but... meh.

[ubbuser]

See, we have some feisty members and a variety of backgrounds. Methinks it's time to seek an appointment with a lawyer

[sidelite]

I've received one letter from an attorney requesting a post be removed. It said their client did not post it. (Of course they also wanted to know who the imposter was). SO it might be a different story on "free speech" if someone registers under a false name and starts making posts under that name. Don't think free speech covers making claims under someone elses name.

So if someone had posted here under name of Bill Clinton and posted "Pardons Reviewed.. only $19.95" would that be acceptable... don't think so.

[bigmattyh]

Well, the most important thing is that you clearly state your policies/rules at the time of signup. That way, if someone clicks the "Agree" button, he is accepting the terms of membership and is bound by them. Of course, this only applies if you limit posting to registered members.

Word your policies/rules in such a way as to clearly state your authority to do whatever you want to the posts on the board, but also that you are under no obilgation to do so. If you state in your policies/rules that you do not accept spam, pornography, vulgar language, threats, or whatever else you feel is necessary, then limit yourself to editing this kind of material. Avoid the tempatation to edit posts for other kinds of content. The key is consistency, so you keep the environment fair -- and so everyone is crystal clear about the rules.