Checking the (il)legality of something.

DeVore

Taken from the modding thread, regarding Boards position as potential publisher.

evercloserunion wrote: »

Well legal advice is generally the best way to go about that. If it was a serious and complicated enough issue you would probably have to hire a solicitor I imagine which would still cost you but obviously not as much. Kind of like running your finger along the blade instead of sticking your head in the guillotine.

We have hired one of the biggest in the business. They're very good to be fair but they and every other lawyer we have been to has said the same thing.

"fooked if I know". (paraphrased, mostly!)

A couple said "yah you should be ok" and when we asked if they would put it in writing they decided it was a lot more risky then 5 minutes prior.

Everyone SEEMS to think we're alright and we certainly do. We stand by our contention that we execute a duty of care so to speak towards the users and the general public BUT no one is sure.

Europe has laws about service/software providers which seem to cover us but we have to go through a LONG process here to get to there. We will if needs be but that seems mad.

I'm interested in the general position though:

So, are you genuinely telling me that to find out if what if something is illegal for sure, you have to do the thing and suffer the consequences ??

Is there any sort of special understanding for first time breakers of what suddenly the judge has decided is "law"?

Can one petition a judge? Ask nicely for a quick ruling?



I mean, I have made up "rules" on the spot here on Boards but I would never ban a user when I had only just realised its a "rule" after they have done it!

The more I think about it, the more bonkers this seems.

Are we just going to be left in Limbo?

DeV.

Rhonda9000

PERSONALLY I think the area remains so untested because

1) As a general concept, if reliance on poor internet advice were a viable legal argument or defence, the internet would had to have been shut down long ago for fear of damaging the poor segment of society lacking the most rudimentary of good judgment or reasoning skills

More legally speaking..

2) Legislation -clearly worded or otherwise- does not exist because the internet is universal and cannot be governed. Perhaps some day the UN or similar body may create a framework to settle the complex practical issues which exist in the most neutral way.

3) Pre-existing common law legal doctrines such as reasonableness, hypersensitive plaintiff etc. have been operating for a long time to exclude absurd claims from succeeding in the legal system. The resulting flexibility is perhaps why your lawyer friends are saying "it should be fine..." as opposed to "it WILL be fine"

Pub07

There are lots of forums out there where people are giving and taking legal advice all the time. An example would be the twoplustwo poker forums where there are constantly myriad ongoing and potenial legal issues being discussed and advised upon by the parties involved, and where serious money is at stake and the owners/moderators have no problem at all with it and even join in the discussions. Maybe fire them an email and get their opinion on it, and see if they have looked into it at all.

DeVore

They are owned and operated in the US. They have a constitutional protection I dream about.

This thread isnt really about "can we give legal advice" its about "how can one tell if something no one has done before is illegal?" .... stick your head in the guillitine and see if your legal teams advice was good?

What happens then? They can simply say "oops, our bad" and we're minus a head?

What if they say "Should be fine"... thats not confidence inspiring and frankly not a helpful answer.


How can someone test a law without breaking it in the process??

Can you guys not see the inherent issue about this?? We're operating in the dark, shouldnt there be someone in the legal world who is tasked to give you an answer (even if thats a judge?).

DeV.

dermot_sheehan

It is a bit unfair that when the law in an area is unclear, the law isn't clarified until a test case is brought.

I suppose if there was an active dispute as to legal rights a declaratory action could be brought similar to kay v. metropolitan police commissioner http://www.bailii.org/ew/cases/EWHC/Admin/2006/1536.html but that would incur the costs that a party is seeking to avoid.

One could of course lobby the legislature to clarify the law in an area. Other then that the only way to clarify the law is through litigation

Fighting Irish

just host boards.ie in a decent country then you won't have to worry about anything

Mena

Fighting Irish wrote: »

just host boards.ie in a decent country then you won't have to worry about anything

I'm no lawyer but I'd be pretty sure this won't help one bit. The owners of boards.ie live in Ireland, not in the USA. As such, are subject to Irish law no matter where the server is hosted. I think something similar to this popped up on politics.ie a while back, which even had the site moved to a US server, to little avail.

DeVore

We checked that. The law is quite clear on the subject (because its the same law that is used in paedophile cases). The offence occurs when the data is configured into pixels on the screen, be they words of defamation or images of child pornography the offence occurs inside your computer as the screen renders the data into pixels and thus into photons.

We live in this country and we are a LTD company in this jurisdiction. Everything important is here so we abide by Irish law.

Besides, I'm not running away from my country when I believe I am doing nothing wrong and taking due care and attention.

DeV.

DeVore

gabhain7 wrote: »

It is a bit unfair that when the law in an area is unclear, the law isn't clarified until a test case is brought.

I suppose if there was an active dispute as to legal rights a declaratory action could be brought similar to kay v. metropolitan police commissioner http://www.bailii.org/ew/cases/EWHC/Admin/2006/1536.html but that would incur the costs that a party is seeking to avoid.

One could of course lobby the legislature to clarify the law in an area. Other then that the only way to clarify the law is through litigation

How do we lobby the legislature? That sounds interesting....

DeV.

dermot_sheehan

Contact your local TD's I mean and have legislation clarifying the issue enacted.

For example get them to hurry up passage of the new Defamation Bill with its defense of innocent dissemination http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2006/4306/b4306s.pdf

25.—(1) It shall be a defence (to be known as the “defence of
innocent publication”) to a defamation action for the defendant to
prove that— 5
(a) he or she was not the author, editor or publisher of the
statement to which the action relates,
(b) he or she took reasonable care in relation to its publication,
and
(c) he or she did not know, and had no reason to believe, that 10
what he or she did caused or contributed to the publication
of a statement that would give rise to a cause of
action in defamation.
(2) A person shall not, for the purposes of this section, be considered
to be the author, editor or publisher of a statement if— 15
(a) in relation to printed material containing the statement,
he or she was responsible for the printing, production,
distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the
statement, he or she was responsible for the processing, 20
copying, distribution, exhibition or selling only of the film
or sound recording,
(c) in relation to any electronic medium on which the statement
is recorded or stored, he or she was responsible for
the processing, copying, distribution or selling only of the 25
electronic medium or was responsible for the operation
or provision only of any equipment, system or service by
means of which the statement would be capable of being
retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a 30
person took reasonable care, or had reason to believe that what he
or she did caused or contributed to the publication of a defamatory
statement, have regard to—
(a) the extent of the person’s responsibility for the content of
the statement or the decision to publish it, 35
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.

drkpower

While the Defemation Bill may be of some limited assistance to an internet forum in the Defence of such an action, the Bill doesnt really address the difficulties of open forums such as the Boards.

Unfortunately this whole area of law will only be clarified when a case is taken in Ireland.

The legislature are unlikely to address the are specifically and substantively in legislation.

dats_right

Back to the real world, lobbying the Oireachtas is not realistic! Especially over some matter of marginal national significance; don't you think the Oireachtas has more pressing demands re the economic meltdown, bank bail-outs, etc? And besides in the very unlikely event that you somehow got a Government Minister to 'take your issue up', it is highly likley that the legislative process will take quite a considerable amount of time, think more in years than months. Indeed most of the other suggestions by posters are equally unrealistic and somewhat disappointing.

1. So, are you genuinely telling me that to find out if what if something is illegal for sure, you have to do the thing and suffer the consequences ??

Ans. Ultimately, yes I suppose so.


2. Is there any sort of special understanding for first time breakers of what suddenly the judge has decided is "law"?

Ans. No. Although, in any case, a Judge is entitled to consider all of the relevant circumstances surrounding the case in deciding on the appropriate sentence.

3. Can one petition a judge? Ask nicely for a quick ruling?

Ans. In the land of make believe and fairytales maybe, but back to reality the answer to this is quite categorically NO.

OP, if this is as complex as you say, then it would be normal in the circumstances, for your solicitor to be advising you that it is appropriate to seek specialist Senior Counsel Opinion on the matter. That is certainly the best option for obtaining the most definite view/advice available on the applicable law. Whilst Senior Counsel Opinion doesn't offer absolute certainty, it offers more comfort then adopting the more risky 'wait and see approach' and in any event offers the best, if not only, available solution.

If the matter turns on some EU source of law or maybe even International Agreement or whatever and there are no SC's with the sufficient specialist knowledge, it may be necessary/advisable to seek advice from an eminent specialist QC in one of the commercial chambers in London. But even that doesn't offer cast iron guarantees either.

My advice to you is to talk to your solicitor and explore the possibility of obtaining SC advices. Be warned that such advices can be costly and the more eminent the SC or the complex or more novel the area of law the higher the cost is likely to be.

DeVore

Back to the real world, lobbying the Oireachtas is not realistic! Especially over some matter of marginal national significance; don't you think the Oireachtas has more pressing demands re the economic meltdown, bank bail-outs, etc? And besides in the very unlikely event that you somehow got a Government Minister to 'take your issue up', it is highly likley that the legislative process will take quite a considerable amount of time, think more in years than months. Indeed most of the other suggestions by posters are equally unrealistic and somewhat disappointing.

People have been telling me I'm being unrealistic all my life... take this site for example, everyone said we were mad. I'd like to know whats involved because I think it IS of national importance. Great importance that we codify the law as we (the people) want it. I take your point on the length of time though... I would expect it would take years.

Your other answers are very clear and helpful. Thanks!


This (http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2006/4306/b4306s.pdf) does seem to offer us more then a glimmer of hope.

Can someone translate from legalese to english? Does it help the case of internet forums or not? (I wont hold you to your answer I understand its speculative....)


DeV.

Victor

DeVore wrote: »

This (http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2006/4306/b4306s.pdf) does seem to offer us more then a glimmer of hope.

Can someone translate from legalese to english? Does it help the case of internet forums or not? (I wont hold you to your answer I understand its speculative....)

Thats only a bill. It would need to be passed by the Oireachtas to become an Act for it to have effect.

dermot_sheehan

Well it is a Government Bill so has some chance of passing, and has passed the Seanad and is at committee stage in the dail.

On the other hand its been sitting around since 2006

http://www.oireachtas.ie/viewdoc.asp?DocID=6059&&CatID=59&StartDate=01%20January%202006&OrderAscending=0

TJM

DeVore wrote: »

How do we lobby the legislature? That sounds interesting....

DeV.

Maybe we need to have a chat...
http://www.digitalrights.ie/category/defamation/

The IIEA have a very interesting project at the moment and would like to hear your input:

http://nextleap.wordpress.com/

Here are my views on things we could push for as part of this project:
http://www.tjmcintyre.com/2009/01/irish-digital-legal-services-centre.html

DublinWriter

DeVore wrote: »

They are owned and operated in the US. They have a constitutional protection I dream about.

Amen to that. Could you imagine a site like www.ratemyteachers.com even lasting 5 minutes in this jurisdiction?

In fact, when that site first came on a few years back, there were a few potentially libelous\slanderous remarks posted about teachers in Ireland.

Cue outraged PR officer from INTO saying on the now defunct 5-7 Live that they would pursue every legal avenue available. The same officer appeared on the show a few days later in rather more sheepish mode, stating that as the site was based and run in the states, that there was nothing they could do.

I think the most pertinent case-law precedent at the moment is the Motley Fool vs Smith case and subsequent appeal in the UK last year. The final outcome would indicate that UK judiciary should perceive message and blog-sites not as publishers, but as little more than public-houses that are not legally responsible for the chat of their clients therein.