The legal position...

A snowHead

I am really interested in the legal advice the Ski Club received on its bulletin boards. It's not only relevant to them - but to any online community in the UK.

I thought I might post a few relevant links - and see if anyone else has any hard information on this issue.

Cue some stupidly long posts – sorry.

A snowHead

Here’s a few extracts from BBC policy:

“Any BBC Internet site on which the public places material must be moderated; this may involve premoderation or postmoderation…BBC sites which carry postmoderated content should ensure that messages from the public are seen, checked and, where necessary, removed within the agreed time limit…

Message boards are offered on the BBC site as a shared space for contributors to use and enjoy. While moderators should be rigorous about defamatory or other illegal, or offensive messages, successful online communities operate by consent and encourage a genuine sense of ownership among their users.

BBC moderators will not normally edit contributions for grammar or spelling although they may edit for use of strong language. Messages with substantial problematic content are normally rejected as a whole, rather than edited. A reason should be given, and they may be resubmitted once altered.

In order to protect our users and our brand, it may sometimes be necessary to go further than simply rejecting a single message. It is the responsibility of every host and moderator to be able to implement a swift and robust escalation strategy where appropriate. This may range from temporarily removing a contributor from a board or forum to putting a board into 'read only' mode or ending a live chat early. Further guidance is available from Head of PC/ Internet and Editorial Policy.”

http://www.bbc.co.uk/info/policies/producer_guides/text/online_guides_a.shtml

Well, the person's real but it's just a made up name, see?

Here’s PC Pro’s <a href="http://www.pcpro.co.uk/?http://www.pcpro.co.uk/features/features_story.php?id=53095&searchString=bulletin+boards+bulletin+boards+board+boarding">take</a>:

While on the one hand you'll probably want as many people as possible to post messages on your forum, you definitely won't want them to post messages that are in any way defamatory or perhaps racially inflammatory. If defamatory messages are posted, the forum operator can be liable in a big way, as test cases have shown. Across the pond, things are much simpler: US law protects ISPs from liability for false and defamatory statements by others under the Communications Decency Act and there are numerous legal precedents. In the UK, things are by no means as clear cut.

While the general defences of justification, fair comment and privilege always apply, the Defamation Act of 1996 attempted to clarify the issue of liability for Internet libels by proposing that system operators or ISPs should be viewed as only secondarily responsible for an Internet libel if they're just the 'transmitter' and not the actual author or editor of the libel. A person with only secondary responsibility could then avoid liability for a Net defamation if they can show that, having taken all reasonable care, they didn't know or suspect that the system was being abused.

As a result of the Defamation Act, the 'hands-off' approach being advocated in the US can't apply in the UK. Simply leaving a forum unmanaged is unlikely to be viewed as taking 'all reasonable care'. Conversely, checking every message may render a sysop liable as a de facto editor. In the UK, the best approach for forum sysops is probably to reserve the right to edit material - thereby demonstrating reasonable care - while emphasising the impracticality of checking everything and consequently not assuming the obligation to do so.

Unfortunately, the protection offered by the 1996 Defamation Act was thrown into some doubt by a decision of the High Court from March 1999, the first definitive ruling by the High Court on an issue of Internet libel. The case involved a Dr Godfrey, who had already won an Internet libel in 1994. Here, the court ruled that ISPs could be held liable for libellous statements posted on Internet bulletin boards maintained by an ISP. In the case, Dr Godfrey alleged that Demon failed to remove false and defamatory statements about him after being notified of libellous bulletin board postings. The Godfrey decision may, however, soon be made moot, as a proposed European Union e-commerce directive grants ISPs some protection from contributory defamation suits.

For the moment, it would appear that the way forward for UK institutions is to impose 'acceptable use policies' on forum users. These may provide a defence should a user post defamatory messages. They can also avoid liability by the simple expedient of removing contentious material when it's brought to their attention, although this sometimes results in unwarranted 'knee-jerk' reactions. The alternative is to move servers to the US, a country with a robust code of free speech."

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My tentative conclusions:

1. The Ski Club needed a proper moderation policy.

2. Community moderation – of the type we have here – would have worked and provided a reasonably high level of protection.

3. Moving the web servers to the US would have increased levels of protection (and been cheaper too).

4. The law’s an ass in this case – and it is all a bit murky.

Any other thoughts?

Anyway, snowHeads is much more fun if you do.

First thoughts... Perhaps U's server is in the US? I agree, a well-regulated moderation policy with 'reserves' able to take over during those times the principals cannot watch the forum should suffice. Wrong-doers are quickly spotted and can be booted off promptly. And yes - the law's an ass - which is why so many in the profession make such a lot of money from it.

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It seems to me the legal advice is being used as an all-powerful card that trumps any other argument - but there could be a useful debate about whether the advice is right...

Then you can post your own questions or snow reports...

I have asked the SCGB for the legal opinion to be published on their site so the SCGB members can all see it. I doubt if they will accede to the request. We may never know whether the advice is correct, if in fact impartial professional legal advice was indeed sought for both SCGB sites.

Logically SCGB should have closed both sites open fora ( plural? ) if the legal advice supported it, not just one. This inconsistency leads one to believe that there is either incompetence or deceit at work. Certainly not a vision to grow the club or to properly research ways round the legal problems ( as outlined above ) so that procedures are put in place to protect the assets of the club from litigation. Most problems have a solution if one is prepared to " work the problem " .

As I said in the other place the closing of the open forum is a sympton of wider problems of lack of transperancy, openess and inclusiness. It is members own fault that they have not got involved or interested in the running of the club; and the management through the Council members have taken on an oligarchial role. The open forum was the " Berlin Wall " coming down, which has now been re-built.

After all it is free

In addition it would seem that as long as requests from "Injured Parties" are not ignored then liability is limited, Demon appears not to have reacted to the complaints of teh Dr. and this is why they lost, it looks therefore like a safety net, ISP's are required to monitor the BB's Demon failed to do so properly (according to the above story) and so lost, as long as the moderators bear this in mind there should be no similar problems with snowHeads.

Any member of the Club could request that the legal opinion (and its source) is read out at the next annual general meeting. There's no reason for it to be secret.

Thanks, David, for those interesting examples of moderating policy. The more the merrier (not that they're that merry).

*Ski* the Net with snowHeads

David Goldsmith, when is the next annual general meeting? I would be happy to attend with as many of the refugees as can be mustered.

DavidS, thanks for taking the time to write so much. Very interesting. I would add that in a lively site such as this the members aid the moderators: anyone posting anything nasty is going to be quickly spotted and the moderators informed.

snowHeads are a friendly bunch.

I would also like to thank David Goldsmith for pointing out that I had made a comment earlier that needed to be altered a little rolling eyes

that aside I think that having read the above post we will all be on the lookout for potential problems with postings from now on.

snow reports

I've just realised something ironic, according to the above statements what the SCGB was doing on its original site was a legal system, i.e it was moderated and complaints were and are still acted upon, however according to the terms and conditions of the new site that does not appear to be the case there, I have cut and pasted the relavent paragraph below

Nether the Ski Club not anyone who has been involved in the creation of this web site shall be liabel for any direct, indirect, special, consequential, or incidental damages arising out of the use of this web site. The Ski Club does not monitor, approve, endorese or exert editorial control over information posted by users in the interactive discussion forums (called 'Snow Talk') contained within this web site and therefore does not give warranties or accept responsibility for any information posted in these interactive discussion forums by user which: (i) is defamatory, obscene, threatening, untrue or in breach of any applicable laws, rules or regulations, (ii) is in breach of any person's rights (including without limit, copyright and confidentiality) or (iii) contains a virus or bug or is otherwise harmful.

If I understand the above ruling this contravenes the duty of care incumbent on the site provider and would not stand up in court .... Mind you I'm no legal expert so what do I know

Jonpim. The AGM is usually in late November, but the date is not normally announced until mid-summer. There is a deadline for nominations for the governing Council, which is usually sometime in July.

You know it makes sense.

I think it's worth bearing in mind that lawyers can be ultra-cautious in their advice. Back in 2001, for example, Hammond Suddards were advising people not to "deep link" to other websites - i.e. only to link to a site's home page. never to other pages. They said this might be illegal - even though linking is essential to the web's existence. Crazy!

Otherwise you'll just go on seeing the one name:

Here's the Motley Fool's policy (the site is one of the biggest financial sites):

"The Motley Fool respects the intellectual property rights of others, and we ask our users to do the same. It is also against our Terms of Service, for anyone to post or transmit any content that is defamatory in nature. However, because thousands of messages are posted in our forum and there are millions of possible sources spread out across the Internet and offline world, we often can't know what a post says, let alone if it infringes a copyright or is defamatory.

If you believe that your work has been copied in such a manner as to represent a copyright infringement or violation of your intellectual property rights or that you have been defamed by a post(s) on our boards, please email our email our discussion board administrators so that the situation can be promptly addressed."

http://www.fool.co.uk/Help/Mission.htm

A snowHead

Yes but at least they have the proviso that they will respond if you ask them to do so, reading the SCGB paragraph above they seem to be implying that they have no responsibility at all for what is posted, not only does this contradict what they said about the SCGB forum, but it also seems to be against the Dr Godfrey case where Demon were prosecuted for doing the same thing ?

A snowHead

Yeah - I think they'd look very silly in court, DG. And I think showing that you've behaved reasonably is a very good starting point in any court case - "yes we knew we had responsibilities, yes we explained them openly to our readers, and yes we did our best to live up to them" etc etc is better than mising some strong legal language with some arbitraty actions...

Well, the person's real but it's just a made up name, see?

Glad I wasn't imagining things, the whole thing seems very strange to me but then I'm only a hors Piste not a mega-snowHead or an SCGB committee member

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Here's another policy - this time from OpenDemocracy, a fairly big website (100 odd staff, I think):

"Are forums moderated? Is there anything I am not allowed to say?
All posts in the discussion forum are read by the moderator shortly after they have been posted. openDemocracy operates on openness and trust, and intervention will always be kept to a minimum. Discussion forums belong to the members.

However, it is expected that members abide by the terms & conditions of the site. Please do not use profane or offensive language, and be respectful to the views of others - even if they are profoundly unlike your own. You will meet many different kinds of people in the forums.

If you are offended by a post, you can ask to have it removed. The moderator will consider your request, and either ask the offender to rephrase, or remove the message entirely.

If a message has been edited by the moderator, it will say so at the bottom of the text."

Anyway, snowHeads is much more fun if you do.

That sounds intelligent and respectful to a forum community. I like that.

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DavidS, the Hammond Suddards thing you mentioned above may seem a bit over zealous, but can save getting into hot water. When I first set up a web site for a friend, I also did some deep links to usefull information on other sites (including SCGB). Some sites insisted that the link was to their home page.
One site (which will remain nameless) insisted on the specific wording used in a paragraph before the link to their page.

Help!!

The legal position...

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