Following on from a Feedback thread...

Dav

I've copied the relevant posts from this thread on the Feedback forum as it's sparked off an interesting discussion and I'm curious to hear the thoughts and opinions from the folks here.

The inital thread was asking about the sorts of legal threats Boards gets and both Nicola and I explained the sort of thing that regularly crops up and I gave an explanation of the MCD issues we had a few years ago. The side discussion then started with Cody's question below and I've copied in all the posts I think relevant to the discussion here to make it easier to read through and follow on from.

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.

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".

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

I'm approaching the end of the day here in the office so I won't be able to get back to this till tomorrow - I didn't want anyone to think I was just cutting the discussion and running away from it