Legal action against Boards.ie forum.

TireeTerror

Im not trying to be a smart ass here, I would just like to properly understand the situation.

Several times Ive seen various posters in threads being warned by a moderator due to a fear that Boards might get into some kind of trouble for allowing members to speak about things such as accessing torrent sites, or avoiding paying taxes, or buying green diesel or whatever.

How likely is it that Boards would get in trouble? Are boards legally responsible for content posted up by its members? I understand that there are laws regarding things like child porn or whatever and they probably would get in trouble for that. But is it actually illegal to talk about ways to avoid taxes, use torrents etc? If it is illegal, what would the charge against Boards be and what could the punishment be if found guilty of breaking said law?

What are the laws in Ireland regarding freedom of speech, and how does it apply to a private forum?

I would imagine if all manner of illegal activities were being discussed, even bragged about, it may well just change the very nature of the site. There are many mods about though, so they could keep conversations in check regarding decency etc. I just find it so weird that I couldnt discuss the best way to access the piratebay website purely because ISPs are now preventing access to the site. I know Im not allowed to post links to mirror sites etc, but I just want to really understand why I cannot do such things, when it wouldnt take anyone more than 5 minutes to learn all about it using Google.

There are loads of dodgy forums out there dealing with all manner of illegal activities, and I dont see them being shut down.

Im sure many people have an opinion on this subject, but if possible, I would like a reply from someone from Boards themselves to give an accurate answer, rather than just assumptions.

Regards

Dravokivich

Boards is seen as a publisher and can be held accountable for libel claims.

Sir Humphrey Appleby

Boards can be sued for defamation,prosecuted under Incitement to Hatred, and found in contempt of Court for revealing details of ongoing cases which might be prejudicial,or naming individuals whose identities are protected.
Thats just a few instances where they could be get into legal trouble.

Boards.ie: Nicola

Dravokivich wrote: »

Boards is seen as a publisher and can be held accountable for libel claims.

Technically that's not true, we don't publish any of the content on the site but yes can be held liable if we do not take the correct action when notified of problematic content. Hence why we say we operate on a 'notice and take down basis', in order to take action we need to first be notified.

We get about 5/6 legal threats a week and have to treat every single one as being potentially serious. Generally most alleged issues are defamation (Defamation Act 2009) but we also investigate breaches of copyright and inflammatory content under the Incitement to Hatred Act (1989).

We are the biggest site of our kind in Ireland and as we rank so highly in Google, we are a lot more visible than other sites and as such, something of a target.

This is our official response:

Boards.ie is an information society service provider within the meaning of the Electronic Commerce Directive, which prohibits the imposition of any duty on us to monitor the information which we store. We are not responsible for and do not pre-moderate users’ posts. This is apparent from our Terms of Use. We ask browsers and users of our site to notify us immediately if they believe content on Boards.ie contains defamatory statements or material which infringes their intellectual property rights. We then use all reasonable endeavours to remove the defamatory and/or infringing content complained about within a reasonable period of time. As outlined above this is strictly on a without prejudice basis and without admission of liability.

GLaDOS

OP probably wasn't around for the old days of 'NO DISCUSSION OF MCD'

LoLth

Also, if a mod sees something he/she knows from experience is going to cause problems they have the authority to take it down without legal notification -

eg: I post a picture of a semi-nekkid person. Mod can remove without first being contacted by the subject of the picture to protest against its public exposure.

so, if notified, Mod/admin has to take it down within an acceptable timeframe or boards is basically saying "well we think its ok" and then the legal stuff starts. Also, it should be noted that notification has to come from someone in a position to object to the content. (depending on the situation of course).

if no notification (reported post, PM to mod - that was read by the mod! , etc) then its mods discretion and best judgement. A mod may get it wrong every so often but their ability to make the right call for their forum is central to boards.ie's success and its not something I think any mod or admin likes to be asked to second guess.

LoLth

TireeTerror wrote: »

What are the laws in Ireland regarding freedom of speech, and how does it apply to a private forum?

this is a privately owned forum and as such there is no right to free speech. A user agrees to terms and conditions when they sign up, in return for the ability to post to this site, they agree to abide by those rules and restriction. Even though "freedom of speech" is quite a common argument used by users that cannot or will not abide by the rules, Boards.ie has never , ever , said users have freedom to say whatever they want on this site but we have said the opposite quite often

There are loads of dodgy forums out there dealing with all manner of illegal activities, and I dont see them being shut down.

Im sure many people have an opinion on this subject, but if possible, I would like a reply from someone from Boards themselves to give an accurate answer, rather than just assumptions.

Regards

there are loads of , legal, tasteful-as-possible, pornography sites out there but you dont find it on boards (or at least, not easily).

Its part of what makes boards what it is. some forums have an anything goes policy and they quickly become a stomping ground for trolls and muppets and there's a general race to the bottom in terms of tolerance and civility. Sure, the site is useful, it has links and descriptions and instructions but it also has flame wars, staunch opinions, blind links to unlawful and/or indecent material, aggressive fighting rather than discussion and , more often than not, a user base that resorts to namecalling/insulting/general abuse to "win" and somehow improve their standing within the pack.

By all means, if you want to learn about torrent sites and how to decode the latest version of MP4 codec so X or Y DVDRIP will play on your XBOX, take the 5 minutes and use google to find what you want. Then, when you feel like having a chat and being part of a community, drop in here. Just leave the link at the door

kaimera

ScienceNerd wrote: »

OP probably wasn't around for the old days of 'NO DISCUSSION OF MCD'

In the 'old days' it wouldnt have happened and or mattered.

TireeTerror

ScienceNerd wrote: »

OP probably wasn't around for the old days of 'NO DISCUSSION OF MCD'

Ive only been a member for 2 years since I moved to Ireland. Had to open a new account recently due to having used my company name as my username.

What is the MCD? It sounds exciting!

GLaDOS

TireeTerror wrote: »

Ive only been a member for 2 years since I moved to Ireland. Had to open a new account recently due to having used my company name as my username.

What is the MCD? It sounds exciting!

Basically MCD (The Event Promotor) took legal action against Boards because of posters criticising them regarding Oxegen one year. For the duration of the legal proceedings, all talk of MCD was banned completely and there was a sticky at the top of every forum saying so.

That's my recollection of it anyway, could have gotten some of the details wrong.

ScienceNerd

ScienceNerd wrote: »

Basically MCD (The Event Promotor) took legal action against Boards because of posters criticising them regarding Oxegen one year. For the duration of the legal proceedings, all talk of MCD was banned completely and there was a sticky at the top of every forum saying so.

That's my recollection of it anyway, could have gotten some of the details wrong.

Yeah, that was an interesting time alright.

Overheal

Yeah, even in forums with no moderation like the old feedback and thunderdome. You could personally abuse someone or respond to arguments with nonsense cat pictures but SO HELP ME GOD IF YOU TALK ABOUT MCD!!!

The Hill Billy

I haz fond memrys of Old Feedback... * sigh *

Sparks

LoLth wrote: »

this is a privately owned forum and as such there is no right to free speech.

Or to put it slightly differently, you have a right to free speech under the Irish Constitution, but nowhere in that document is there mention of anyone having a legal duty to either:
(a) provide you (at their own expense and exposure to legal liability) with an internet soapbox to stand on while you exercise that right; or
(b) listen to you

So if a mod deletes your post, it's not an infringment on your right to free speech, unless the mod calls round to your house and cuts off everything you could use to exercise that right (fingers, toes, tongue, eyeballs, etc, etc, etc). You can still go anywhere else and exercise that right. Tweet, Facebook it, start a blog, stand on the corner waving a cat and screaming, or all of the above (though the cat will make it harder to type).

oscarBravo

Sparks wrote: »

...stand on the corner waving a cat and screaming, or all of the above (though the cat will make it harder to type).

It may, however, facilitate screaming if you're waving it.

Sparks

Not to mention that it'll help your youtube video to go viral. Property crisis over -- Irish person finds room to swing a cat...

4zn76tysfajdxp

Please let the cat picture nostalgia die. That and the bloomin' Gathering Cards makes me think that Feedback is also the wizened old Boardsie nursing home forum.

Insect Overlord

Holden Bumpy Tenderloin wrote: »

Please let the cat picture nostalgia die. That and the bloomin' Gathering Cards makes me think that Feedback is also the wizened old Boardsie nursing home forum.

You can't fight it. You've been here since 2006. Accept it!

One of us! One of us!

kaimera

now I miss old feedback. :-(

cast pics used properly were awesome.

amp test

Steve

kaimera wrote: »

now I miss old feedback. :-(

cast pics used properly were awesome.

amp test

I still remember the day they were banned.

RIP longcat.

Overheal

I accept no responsibility for that. Cats made me do it.

Mr. G

TireeTerror wrote: »

Ive only been a member for 2 years since I moved to Ireland. Had to open a new account recently due to having used my company name as my username.

What is the MCD? It sounds exciting!

http://m.boards.ie/vbulletin/showthread.php?t=2054965633

http://m.boards.ie/vbulletin/showthread.php?t=2056820593

TireeTerror

Mr. G wrote: »

http://m.boards.ie/vbulletin/showthread.php?t=2054965633

http://m.boards.ie/vbulletin/showthread.php?t=2056820593

WOW! Thats some reading. Id love to comment more, but Im sure it will be boring bringing up the past.

Dav

It's not terribly exciting now, but it was a scary time for the site back then because we didn't know where it might go. The reality of course is that MCD didn't have a leg to stand on, they were suing us for someone's identity - these are details that we cannot legally hand over without the correct data protection act paperwork.

Long story short, MCD didn't bring us to court but had filed the initial paperwork to do so. We stopped all discussion of MCD and related events out of a concern that someone would say something defamatory and that they would have further grounds for legal action against us.

Time went on, MCD's management changed, they didn't appear to actually want to pursue the case and then a landmark legal case in Ireland happened; the courts ruled in favour of a website (BetFair) that hosted a forum section in a defamation case by agreeing that they had acted responsibly and as an e-commerce service provider and a conduit for the content were not responsible for it's initial publication.

This was I think the most important internet related legal decision that's been made in Ireland to date - it means that people who post things on websites are responsible for what they say and the website has a responsibility to act when notified of any potentially illegal content rather than to be expected to monitor and approve all it's content.

When that decision was made, we pretty much dropped the MCD discussion ban immediately because we now had a legal defence should anything happen.

It's worth pointing out though that MCD never "stopped" suing us - they have let the statute of limitations expire and didn't follow up their initial filing with the courts.

blah blah whatever

Dav wrote: »

This was I think the most important internet related legal decision that's been made in Ireland to date - it means that people who post things on websites are responsible for what they say and the website has a responsibility to act when notified of any potentially illegal content rather than to be expected to monitor and approve all it's content.

Then why is the site being sanitised to within an inch of it's life and wrapped up tighter than a cats arse when you have this to fall back on??????????????????????????????????????????????????????????
????????????????????????????????????????????????????????????????????

Have you Usage stats/graphs for the last few years handy there? Throw them up.

Insect Overlord

Jaysus, Merc, you're putting no effort at all into the names these days!

blah blah whatever

Insect Overlord wrote: »

Jaysus, Merc, you're putting no effort at all into the names these days!

SSSSSh, Buffy will be along in awhile.

With regards to that ruling, Dav; could that relate to the discussion of pirated materials and torrent sites? Or does it relate to just defamation? Best I can tell, it's a legal grey area right now.

Dav

Well the founders made a choice many years ago to simply not allow discussion of those sorts of topics on the grounds that there's Google and a million other sites to discuss these things and it helps to show that they were serious about keeping the content of the site legal.

We stick with that these days because we still want to do that and whilst there are those who seem to think that "anything goes" on this site, we know that this couldn't be further from the truth. I often wonder what the people who are scandalised by what they've read would make of /b/?

Sarky

Dav wrote: »

I often wonder what the people who are scandalised by what they've read would make of /b/?

Artist's impression.

Cody Pomeray

Interesting legal question might be

"To what extent are moderators responsible for their own comments, even when commenting outside of their own respective forums?"

Overheal

how do you mean? Mods are still people under the law.

Insect Overlord

Overheal wrote: »

how do you mean? Mods are still people under the law.

Except Ruu. He's still a machine.

Cody Pomeray

Overheal wrote: »

how do you mean? Mods are still people under the law.

But they may be special people in the eyes of the e-commerce directive, as reflected in Irish law.

The "immunity", to use that term, of the bulletin board seems to be extinguished when when the poster is acting under the authority or the control of the site.

It may be that a moderator, when he is not committing an act of moderation, is not "under the authority or the control of the service provider" during that period of time when he is being naughty, but that isn't established in law.

If moderators have an ongoing identity as moderators, or special and continuous powers differentiating them at all times and which exist outside their own forums, it may be that the bulletin board is liable for his actions.

I qualify this by calling it "wild and uncontrolled speculation".

Insect Overlord

Cody Pomeray wrote: »

I qualify this by calling it "wild and uncontrolled speculation".

You've summed it up for yourself quite nicely.

Cody Pomeray

Insect Overlord wrote: »

You've summed it up for yourself quite nicely.

Frankly, I've seen your contributions here and they're well commented upon. So I'm not interested.

I'm just engaging in a discussion of a question I think is interesting. If you don't, fine.

Mr. G

I see nothing wrong with Insect Overlord's contributions. I well respect him actually

Mr. G

In general I haven't seen any mod cause an issue, we usually know the workings of the place so I extremely doubt it would happy to be honest. It would be frowned upon by the admins though if a mod was acting the maggot.

Dav

Mods aren't agents of the company (this is the legal term) as they're not employees, so they don't "represent" the company/site in a legal sense of the word. This means that for all intents and purposes, they're just members of the site like everyone else.

Cody Pomeray

Dav wrote: »

Mods aren't agents of the company (this is the legal term) as they're not employees, so they don't "represent" the company/site in a legal sense of the word.

Without looking beyond Betfair and the direct provisions of the legislation, I'm not sure what this means.

The provisions, as far as I am aware, relate to the "recipient of the service" (i.e. the user) "acting under the authority or the control of the [site]".

If it can be said that a moderator, Category moderator, or Administrator or other person in 'authority' is acting under the authority of the site at the time when he posts a comment, then liability goes back to the site.

The question presumably turns on the meaning and extent of a moderator's authority.

If the moderator has an ongoing authority outside of his own forum, for example (maybe he can deliberate with other mods on mod decisions, maybe he can track private user info in some way), does this mean that the moderator is acting under the authority of the site?

I don't think it's believable that a moderator should be expected to be acting under the authority of the site (*at all times*), but

1. Would a non-user who is unfamiliar with a site comprehend this, and
2. Surely the moderator goes through transient stages of acting under the authority of the site, and the higher up the category of moderator, the likely may be the liability... maybe?

Finally, the English courts have likened the bulletin boards to "bar stool chit chat" and that is all I am doing. I am just talking about the provisions of the e-commerce directive and Betfair insofar as I am aware, probably there is someone who has looked into this in greater detail.

Dav

I didn't answer your specific question very well Cody, my apologies.

Since we introduced moderators to the site some 10 or 11 years ago, we've always said "they're just regular members outside of their own forum" and so to that end, they're not acting with the authority of the site as you put it beyond their own forum. We have had to fight the perception for the last number of years that this is not the case when you see indignant cries of "and this from a mod!" from trolls and idiots alike, but regardless of that, it is and has always been our position that mods are not mods outside their own forum and even within their own forum, they're not "the law," they're there to help it along, not "run" it or preside over it as some sort of supervisor if that makes sense.

So to that end, I'd explain that there are 2 sides to this business - the site which is a platform for communities to be built upon and the office which is the commercial entity that supports and pays for the the site. Whilst we, the company, obviously have legal responsibility for the site, it is, for the most part self managing and our only real involvement comes in providing a framework of rules that we want the site to generally adhere to - this is why we would never insist, for example, that the reasons you might get an infraction be identical across every forum - that couldn't work and we don't want things to work that way.

So, as part of it's agreement to provide the platform to the site, the company has provided tools for volunteers to help keep the site working. These tools don't break any data protection confidentialities, nor do they give access to any information about a member that can't be gleamed from an exhaustive search of the site - in essence they just make it easy to see what someone's history on the site is. They do grant the ability to warn/infract/ban from the forum the mod is assigned to - an unfortunate necessity of any website.

However, they're definitely not representing the company when they act as a mod. If anything, they're representing the community they're helping by saying hat for whatever reason, the person involved has broken a rule that this particular community has chosen to abide by. I hope this distinction is understandable, it's not the most clear cut thing to explain. Mods are just like any other member of the site for all intents and purposes.

I can assure everyone reading that we've discussed this at length with our solicitors over the last few years (certainly since I've been an employee which is 4+ years) and we're happy with where we stand on it.

I hope that clears up the ambiguity for you Cody - there's no harm in asking these questions as we're happy to clarify these things.

As an aside, I wonder would you be interested in my bringing this into the legal discussion forum for some more in-depth expert opinion on the matter? As I said, we're happy with the advice we've received on it, but it's an interesting topic of discussion which appears to be why you asked the question in the first place.

Cody Pomeray

Dav wrote: »

So to that end, I'd explain that there are 2 sides to this business - the site which is a platform for communities to be built upon and the office which is the commercial entity that supports and pays for the the site. Whilst we, the company, obviously have legal responsibility for the site, it is, for the most part self managing and our only real involvement comes in providing a framework of rules that we want the site to generally adhere to - this is why we would never insist, for example, that the reasons you might get an infraction be identical across every forum - that couldn't work and we don't want things to work that way.

I think that's an interesting approach and I can see where you're coming from as a site user. Do you say that the forums are distinct from the intermediary (the company), and that the forums in themselves are not a "relevant service" for the purposes of the E-Commerce Directive?

If Yes, the difficulty is this seems to run contrary to the mainstream interpretation of the E-commerce directive, as outlined by "The Law of Defamation and the Internet" by Dr. Matthew Collins and referred to in Betfair, and which suggests that bulletin boards come under the "information society service" definition, and that bulletin boards are subject to the usual exemptions from liability, but also the limits of the exemptions as contained in the Directive.

It doesn't resemble an argument that any other online service provider has ever made, of which I am aware, even though many of them (most notably ISPs) would also have 'communities' grow from their service. The Pirate bay is arguably a community, for example.

These tools don't break any data protection confidentialities, nor do they give access to any information about a member that can't be gleamed from an exhaustive search of the site - in essence they just make it easy to see what someone's history on the site is.

I have just two questions

1. Probably everyone agrees that a function exists whereby a moderator may decide to remove access to a user from a particular forum.
As you say, there can be no automatic, site wide grounds for this, which is why the site has provided moderators as deputies. But in doing so, are they not conferring on him some authority?

Then lets go outside the forum, isn't there a function whereby any moderator has the authority to site ban a user? I read about this on feedback today but I may have some of the details wrong. An ordinary moderator may issue 9 infractions to a user, which will prohibit that user from using the service for seven days?

Does this not amount to an effective site-wide authority? This leads to the second question.

2. If a moderator's powers, or some of his powers, extend outside of his forum, and these powers cannot in fact be switched off (or have, in fact, been reflected upon and agreed to be appropriate), is it then the case that a moderator's authority is active, sitewide?

However, they're definitely not representing the company when they act as a mod.

Yes but I don't understand the word 'represent'. Even though a moderator is not, for example, a spokesperson, surely the point instead turns on whether he has an authority, because my understanding is that the law only qualifies exemption from liability of the service provider in terms of those "acting under the authority or the control of the [site]".

I can assure everyone reading that we've discussed this at length with our solicitors over the last few years (certainly since I've been an employee which is 4+ years) and we're happy with where we stand on it.

And I think everyone appreciates that. I'm reluctant enough to even labour these points because I can only imagine the legal headaches you guys already deal with on a daily basis, and have no doubt boards.ie has put a lot more thought into it than a random user.

In that sense, this is probably more of a legal discussion line of discussion and I'd be more than happy to debate these issues in that forum, if it makes more sense to make this into a new thread or whatever:)

Dav

Thread in Legal Discussion started here.

TireeTerror

Well I certainly never expected such an interesting and in-depth thread to come out of my original post. Now that its gotten very specific and technical, Im having to read the posts several times just to absorb exactly what is being said.

Great stuff.