The legalities of web fora - (Law and Justice)

If anyone knows anything about the legalities of web hosting, forums etc. or if you run blogs and have links to good sites on the legalities involved could you please post it here or if you can, give some free advice?

Welcome to the Law and Justice forum by the way

ahh, good ole cactus (from 'gone again' thread)
https://machinenation.forumakers.com/welcome-f6/gone-again-t133-75.htm#2906

NDS

There are only two real dangers that we face on a forum like this.

i. Issuing threats and incitement to violence or hatred.

ii. Defamation.

The first one's easy to cover. It's a no no and should be removed immediately when it's noticed.

The second one is more complex. Defamation covers both libel (the printed word) and slander (the spoken word). A forum, being a relatively new media, fits somewhere in between, in terms of being able to produce both these forms of defamation. Libel normally requires the defamation to exist in a printed form that could potentially last forever. This forum does not really fit exactly into this picture, as defamation will be removed as soon as it is detected (I presume) and will not last into perpetuity (Google's cache being a problem here). This forum is not a place where the spoken word can happen either, though it's my argument that because posts may be fleeting, that defamation on a forum more resembles slander than libel. Though I know of no case law that backs this view up, I'm confident that this will not be the case for much longer.

What I'm saying here is that there may still be issues after a defamatory post has been removed. Having said that, the issue that would remain is that the person who uttered/typed the slanderous like content would be the subject of litigation, not the forum (unless a merging of both sides of the defamation law occurs like I've outlined and some new hybrid entity emerges). This could still present the site with difficulties, in that, those acting on behalf of the injured party would be well within their rights to get an offending user's details from the site and could compel the site to provide these details through the courts if they were not handed over, with the site incurring substantial costs.

Scary stuff huh?

Prevention, in my opinion, is far better than cure when avoiding possible liabilities. I've a few suggestions to make in this regard.

i. When new users join the site they must click through a disclaimer that removes all responsibility from the site for what they type. This offers no real defence on its own to the site, but establishes that the site has taken measures to try to prevent defamation. When coupled with other measures it establishes reasonableness with regard to the forum's approach to defamation in general. This is an important mitigating factor, should something slip through the net.

ii. All users with moderation privileges should be aware of how Google's cache works and should be aware of who to contact and the steps to be taken, should material need to be purged.

iii. A report post button should appear beside each and every comment, so that users can report dubious material.

iv. All trusted users should be given the ability and authority to hide suspicious material or indeed to lock a particular thread until mods arrive and make decisions. There should also be a written policy agreed between all parties in the event of a trusted user abusing this privilege.

v. All accusations against named individuals or organisations must be accompanied by substantiating material (photographs, audio, video, links to such material or all of the above or combination of same) - remember that it's not defamation if it's the truth.

vi. There should be written policy (contained in the disclaimer and in the charter) regarding steps that will be taken against users who defame individuals or organisations.

vii. Potentially slanderous material should be hidden, even if it is accompanied by substantiation until it is verified. A PM should be sent to the user in the event of this happening. If the potentially slanderous material forms a thread within itself, but the title of this thread be innocent, the thread should be locked until the verification process is complete.

viii. In the event that some user believes that he or she has a 'scoop' and wants to dish the dirt by publishing it on this forum, he or she should contact the moderation team with the material and the proof of it. The moderation team must give permission to publish before any such material is put into the public domain via the forum.

ix. If it should occur that viii. above has not been adhered to or that some user has jumped into the middle of a thread and published dubious material, or whatever (eg. some one-off user publishing juicy material before vanishing) the following might remedy the situation in lieu of losing something that might potentially be of value: There should be at least one moderator who has given an undertaking that he or she will attempt to verify material that's accompanied by substantiation. I.e. contact the user who published the material, make phone calls, check links, etc. The more moderators that agree to this the better, as many hands make light work. It should be borne in mind that any such moderator runs the risk of becoming a party to be chased by representatives of wronged persons, should mistakes be made. This is not an agreement a moderator should enter into lightly.

Balance, in my opinion is the key to success. A commitment to upholding the good name of others and indeed a commitment to facilitating members of our community so that they will not have to pull their punches, will guarantee an important forum and a strong community.

Hermes thanks for taking the time to post that it's very generous and practical. I'm going to push it now and ask you if copyright is something you know about as you're here so I can take advantage of you. If I publish something from the Irish Times or upload music here or an image ... ? Can you give any advice on copyright in web fora?

Yeah, copyright sucks.

I'm no expert on this but I have a point or two.

Strictly speaking, if you reprint copyrighted material, you could be in danger. Personally, I'd avoid publishing complete works.

It would be harmless enough to publish exceprts of material whilst offering a summary of it. If in doubt, contact the newspaper or whatever the source and ask their permission, they're only an email away. Include the fact that you've been given permission with whatever you reprint. With photographs etc. follow the same procedure and don't forget to attribute copyrighted photos and videos if you are given permission to reprint them.

Embedding video, audio or photos from the likes of Googe or Youtube etc., who offer the code to embed this material, is safe as the material and possible liabilities are their baby. They provide the facility and code to embed and by doing so are saying that they have the right to display such material and are transferring this right to you.

It's a good idea if you're in doubt about material you wish to display, to read any terms and conditions that might be available. This can tell you one way or the other whether you have permission or not. And they can offer the steps you must take to secure such permission.

In most cases, in my opinion, folks will want to reprint material from newspaper web sites. The easiest way to avoid trouble here is to print a brief synopsis followed by a link to the source.

With written material that's more than a century old (it's somewhat less than a century but I can't remember it off hand - I've no idea what the best before date is on recorded audio), the copyright, unless it's been reapplied, has lapsed and it's safe to reprint such a work in its totality. (A good source to check and indeed to get such material is http://www.gutenberg.org/wiki/Main_Page)

Like I said, I'm no expert or even close to being one on this subject. But I'm confident that I'm correct in the little that I did say.

Not going to quote Hermes' long post but having read a few legal notes on this issue and other discussion, this is the best thing I have read by far. I'll be commenting / adding a few things when I have finished my homework. Thanks Hermes

You're very welcome.

Hermes wrote:

There are only two real dangers that we face on a forum like this.

i. Issuing threats and incitement to violence or hatred.

ii. Defamation.

The first one's easy to cover. It's a no no and should be removed immediately when it's noticed.

The second one is more complex. Defamation covers both libel (the printed word) and slander (the spoken word). A forum, being a relatively new media, fits somewhere in between, in terms of being able to produce both these forms of defamation. Libel normally requires the defamation to exist in a printed form that could potentially last forever. This forum does not really fit exactly into this picture, as defamation will be removed as soon as it is detected (I presume) and will not last into perpetuity (Google's cache being a problem here). This forum is not a place where the spoken word can happen either, though it's my argument that because posts may be fleeting, that defamation on a forum more resembles slander than libel. Though I know of no case law that backs this view up, I'm confident that this will not be the case for much longer.

What I'm saying here is that there may still be issues after a defamatory post has been removed. Having said that, the issue that would remain is that the person who uttered/typed the slanderous like content would be the subject of litigation, not the forum (unless a merging of both sides of the defamation law occurs like I've outlined and some new hybrid entity emerges). This could still present the site with difficulties, in that, those acting on behalf of the injured party would be well within their rights to get an offending user's details from the site and could compel the site to provide these details through the courts if they were not handed over, with the site incurring substantial costs.

Scary stuff huh?

Prevention, in my opinion, is far better than cure when avoiding possible liabilities. I've a few suggestions to make in this regard.

i. When new users join the site they must click through a disclaimer that removes all responsibility from the site for what they type. This offers no real defence on its own to the site, but establishes that the site has taken measures to try to prevent defamation. When coupled with other measures it establishes reasonableness with regard to the forum's approach to defamation in general. This is an important mitigating factor, should something slip through the net.

ii. All users with moderation privileges should be aware of how Google's cache works and should be aware of who to contact and the steps to be taken, should material need to be purged.

iii. A report post button should appear beside each and every comment, so that users can report dubious material.

iv. All trusted users should be given the ability and authority to hide suspicious material or indeed to lock a particular thread until mods arrive and make decisions. There should also be a written policy agreed between all parties in the event of a trusted user abusing this privilege.

v. All accusations against named individuals or organisations must be accompanied by substantiating material (photographs, audio, video, links to such material or all of the above or combination of same) - remember that it's not defamation if it's the truth.

vi. There should be written policy (contained in the disclaimer and in the charter) regarding steps that will be taken against users who defame individuals or organisations.

vii. Potentially slanderous material should be hidden, even if it is accompanied by substantiation until it is verified. A PM should be sent to the user in the event of this happening. If the potentially slanderous material forms a thread within itself, but the title of this thread be innocent, the thread should be locked until the verification process is complete.

viii. In the event that some user believes that he or she has a 'scoop' and wants to dish the dirt by publishing it on this forum, he or she should contact the moderation team with the material and the proof of it. The moderation team must give permission to publish before any such material is put into the public domain via the forum.

ix. If it should occur that viii. above has not been adhered to or that some user has jumped into the middle of a thread and published dubious material, or whatever (eg. some one-off user publishing juicy material before vanishing) the following might remedy the situation in lieu of losing something that might potentially be of value: There should be at least one moderator who has given an undertaking that he or she will attempt to verify material that's accompanied by substantiation. I.e. contact the user who published the material, make phone calls, check links, etc. The more moderators that agree to this the better, as many hands make light work. It should be borne in mind that any such moderator runs the risk of becoming a party to be chased by representatives of wronged persons, should mistakes be made. This is not an agreement a moderator should enter into lightly.

Balance, in my opinion is the key to success. A commitment to upholding the good name of others and indeed a commitment to facilitating members of our community so that they will not have to pull their punches, will guarantee an important forum and a strong community.

Hermes, that's a terrific post. Thanks for taking the time and the effort. As someone who is new to moderating, I really appreciate it.

http://www.digitalrights.ie/2006/01/06/libel-laws-in-ireland/ ( a great little read )

I am on a learning curve on the legal obligations of posters. In the early days of internet fora they were perceived by posters to be a bit like tagging - provided you didn't get caught you could say what you liked. This proved not to be the case. The law treats sites the same way as a newspaper. The law on internet regulation is likely to continue to evolve: we will need to keep up with it and maybe contribute to consultations.

We have to bear in mind that thoughtless words can damage people, and we should not post anything anything detrimental as being a fact unless we would be prepared to prove it in front of a judge.

I asked a few questions of Hermes who replied as follows:

(Kindly contributed by Hermes)

Quote :

my apologies for not getting back to you when I said that I would. Fell asleep at the keyboard last night before I’d finished.

This is not legal advice, but here are a few ideas on your points. I hope it helps.

Cactus Flower wrote:1. Legal entity – if not a company, what is a website? Is it worth forming a company – seems that liable anyway. We don't have a publisher as such, so who would be pursued in the event of trouble?

Interesting question. I don’t believe that a forum such as ours has been defined in law as of yet - via case law. It is a publication though that occurs in the public domain and would be and has been considered as such by the courts. It could be registered as a company in order to limit the liability of individuals. This would not offer full immunity though and would be quite easy to circumvent in my opinion. The initial plenary summons would just have to include individuals sued in their personal capacities as well as the company. This would still limit damages to individuals in that, blame would most likely be proportioned, with the individual(s) receiving a percentage of the blame rather than all of it. In the event of this forum being sued, Auditor #9, being the owner would be considered to be the publisher.

Cactus Flower wrote:2. Defamation - what is fair comment, proven fact, honest opinion – there is quite a lot written on this –

Fair comment and honest opinion are one and the same thing. They both refer to a defence that is often used in libel cases by newspapers and the media etc. This defence involves proving that one was offering an opinion rather than presenting cold facts. For this defence to succeed, it would have to be shown that a hypothetically reasonable person could not arrive at the conclusion that the piece in question was attempting to establish fact. This is a notoriously difficult defence to present. If a piece were fair comment, the chances are that a libel case would not commence to begin with. In a forum such as ours, it would take but a single comment that treated the suspect material as fact to destroy the possibility of using this defence, if indeed the initial piece itself did not do so. Proven fact is a much better defence as it establishes the truth as being the root of whatever material is to be examined. Draw a logical progression without contradictions and you are in the clear. Fail to do so and you’d be back trying to argue fair comment.

Cactus Flower wrote:3. Incitement to hatred – no sources yet

This, despite being very easily dealt with, regarding the forum, is notoriously complex within the law. This is for two main reasons. The first being that many laws overlap regarding this subject, everything from treason to public order. The second being that intent is an important consideration - in other words two different judges could arrive at two different conclusions. Allow me to give two examples to illustrate the difficulty in deciding intent on this issue.

i. Bertie Ahern has sickened me enough; I just wish someone would **************r’s ********.

ii. Why do we help the Americans butcher those in the Middle East? Shouldn’t we help the Iraqi’s ****************** **** **** through Shannon?

Both these comments cross into dangerous territory. It would be up to a judge or a jury as to whether I intended that these actions be carried out or whether I was expressing either a logical abnormality or indeed if I was expressing frustration. In my opinion, anything that looks like incitement should be hidden. Frustration and logical abnormalities can easily be expressed without a question hanging over these expressions regarding intent.

Cactus Flower wrote:4. Information on shares – does this just relate to named shares ? or general comment like “ I think such and such a bank is in trouble”

If I understand you correctly here, I think that all information that is factual in nature is fit for publication, excepting in circumstances where the writer or publisher is bound by contract not to reveal certain information (and even then, if the matter promotes the public good, this information can be revealed). A good point to make here I think is that most of the knowledge that would be examined, is already in the public domain. If one wants to reach into this abundance and hold up two pieces of information for comparison or indeed contrast regarding the law, morality, or whatever: no foul.

Cactus Flower wrote:5. Obscenity - no idea about this…

The vast majority of obscene publications would constitute writing, pictures or audio that would be of a sexual nature that would be considered to portray an illegal act that would scandalise, shock or outrage the public. Basically speaking any publication that sought to either ignore, or indeed argue against, the illegality of certain acts would be considered obscene. The sexual exploitation of children or animals springs to mind immediately. However, discussing the merits of polygamy for example, would not be considered obscene as it could not be argued to be scandalising, shocking or outrageous to the public.


And more on shares etc.

Lol I didn't realise you were talking about insider trading - I went completely off the beaten pathway there . In fairness, if you are not connected to the company being examined and logically conclude from material in the public domain that invesing in, or selling off, shares might be a good idea, then that's your right; there's no law against it or publishing it. Similarly I suppose, it would be illegal to plan a robbery or a kidnapping via the forum. There's lots of stuff we can't do that I hadn't considered before, thanks for giving me something to think about.

There is a good discussion about posting on specific share prices and the situation of named companies on P.ie. (will look for link to thread). You can be fined if you breach the law on this.

Quote :

v. All accusations against named individuals or organisations must be
accompanied by substantiating material (photographs, audio, video,
links to such material or all of the above or combination of same) -
remember that it's not defamation if it's the truth.

One minor addition to the above, which is that simply leaving out the person's name does not prevent somethng being libellous if the person is clearly identifiable.

ibis wrote:

Quote :

v. All accusations against named individuals or organisations must be
accompanied by substantiating material (photographs, audio, video,
links to such material or all of the above or combination of same) -
remember that it's not defamation if it's the truth.

One minor addition to the above, which is that simply leaving out the person's name does not prevent somethng being libellous if the person is clearly identifiable.

Yes - I read that a Garda officer was compensated because his ears appeared in a photo linked to police corruption.

Hermes wrote:

There are only two real dangers that we face on a forum like this.

i. Issuing threats and incitement to violence or hatred.

ii. Defamation.

iii. Intellectual Property Copyright Abuse - noted re copyright above - also extends to images and trademarks.

iv. Breach of confidentiality. This is more for the poster, e.g. if you work in a clinic or a solicitor's office you have binding legal obligations to treat things confidentially.

v. Deceit and Injurious falsehood/fraud. Again more for the poster. Tell somebody a lie so they will rely on it and lose some cash.

vi. Negligent Misrepresentation. This can happen if a poster holds themselves out to have specific knowledge or expertise and offers advice on that basis. Again, I think this is more of a danger for the poster. I think....I mean I'm not sure.... I mean I wouldn't know anthing about that kind of stuff.....sure I know nothing at all me....

Zhou_Enlai wrote:

Hermes wrote:

There are only two real dangers that we face on a forum like this.

i. Issuing threats and incitement to violence or hatred.

ii. Defamation.

iii. Intellectual Property Copyright Abuse - noted re copyright above - also extends to images and trademarks.

iv. Breach of confidentiality. This is more for the poster, e.g. if you work in a clinic or a solicitor's office you have binding legal obligations to treat things confidentially.

v. Deceit and Injurious falsehood/fraud. Again more for the poster. Tell somebody a lie so they will rely on it and lose some cash.

vi. Negligent Misrepresentation. This can happen if a poster holds themselves out to have specific knowledge or expertise and offers advice on that basis. Again, I think this is more of a danger for the poster. I think....I mean I'm not sure.... I mean I wouldn't know anthing about that kind of stuff.....sure I know nothing at all me....

And of course we all know, Zhou, that the above remarks do not constitute legal advice..
but are a welcome part of the discussion nonetheless.

"Would I put my name to this is in a signed newspaper article" is my way of thinking about posts at present.

In terms of responsibility, the very good pamphlet from Digital ireland (link at on the list to the left of Latest Discussions / Portal, is clear that the owner site as Publisher shares responsibility for sins committed by posters - all the more reason for us not to post anything as fact unless we prove it. And there ultimately is no hiding from the responsibility, either by forming a company, or anonymity, as a Court Order can require the posters information from the site.

Something I am not too sure about is use of photos - as there is a warning on Google, but the info is provided to allow you to use them - seems to be a contradition. However on this one I would guess that the worst likely to happen is a bill from the copyright owner?

I think the main remedy for breach of copyright is compensation by for royalties not paid.

Castlebar.ie forced to close after 10 years online due to defamation action.

http://www.castlebar.ie/

Read the closure notice. Very sad IYAM.

Another site bites the dust. The internet as a place for discussion is going to come to an end when the EU elites like Barboso gets control. They won't want an outcry when the economic mess and the mistake of the EU is clear.

youngdan wrote:

Another site bites the dust. The internet as a place for discussion is going to come to an end when the EU elites like Barboso gets control. They won't want an outcry when the economic mess and the mistake of the EU is clear.

It could be a sign of the internet forum coming of age; they are publicly visible sites and it's possible that people neglect that fact. Defamation on an web forum is still defamation and is subject to the same laws. People need to be careful that's all.

Good article in the Mayo news on it - I didn't realise community websites were that popular - this one had two million hits per month...

Quote :

ONE of the best-known and widely-used community websites in the country
has been forced to shut down after receiving threats of legal action
over postings on its bulletin board, which were withdrawn and for which
an apology was issued to the alleged injured party.
Castlebar.ie has been operating for over a decade, acting as a
community resource for people living in Mayo’s county town, as well as
for Castlebar natives living aboard.
However, an announcement was posted on the website by its unidentified
moderator on Saturday evening last, at 7.10pm, which said: “We are
sorry to announce that the Castlebar website is closing down due to
threatened legal action by a local free-sheet against moderators and
posters to the BB [bulletin board].”
Posts were still made on the website up until Sunday afternoon at 4pm,
but the website now just consists of a home page detailing the series
of events which led to the closure of the website, which had been
attracting an estimated two million hits per month.
Mayor of Castlebar, Cllr Eugene McCormack, said it was a sorry day for
the town but added that he was not surprised at the decision taken by
the local volunteers who ‘give of their time every day to manage a
highly-valuable community resource tool’.

Castlebar website ‘forced to close’

YouTube law fight 'threatens net' - Another interesting aspect to this topic.

The internet is a new phenmenon in human communication.

Copyright and defamation laws are having a more and more invasive impact on individuals. Personal communications are being collared and corralled in ways not previously envisaged by law makers.

A media company previously financially destroyed a lady who shared many songs from her computer though not for profit. The fine way exceeded her wealth.

Every individual is now expected to behave as a print journalist would and every website owner is expected to behave as an editor par excellence, par extraordinaire.

The law needs to be changed to serve individuals and society.

It is easy for an aggrieved party to check if there is something critical of them on the web. Conversely, it is impossible for a website moderator to scan all posts for potential criticisms of unknown victims.

I suggest that individuals only should be liable for their utterances and that damages should be low save in the case of maliciousness. People should also be educated that the internet contains a lot of false information thereby limiting the damage it can cause to an individual.

With respect to intellectual property, I think damages should be limited to €5,000 or so unless the person who breached copyright was making money from the breach.

Perhaps bloggers should lobby for an EU initiative in this regard?

In the meantime, it should be made easy for people who run community and non-profit sites to set up companies limited by guarantee to protect themselves.

Good suggestions there Zhou. I think the last revision of our Defamation Act was 1956 or something. Is about that right ?

Anyway it's completely out of date, and the blogger/forum user is at the mercy of the interpretation of this Act WRT the web. A completely screwed up situation.

Would it be better to lobby the EU Meps or Local TD's ? Is it currently possible to take a web defamation case to the ECJ I wonder, and would they be more liberal on the subject ?

The reason I think the EU would be a better place to start is because intellectual property rights are dealt with at EU and WTO level. I don't know who one would lobby. I presume the relevant Ministers (Enterprise Trade and Employment and Justice I suppose) and MEPs are the best people to lobby.

Defamation is not dealt with by EU law but the flow of damages and who can sue who for defamation under what law is dealt with by EU case law. I have never had much sympathy for the Irish newspapers trying to loosen up the defamation laws but I think a change in respect of web publications by private individuals on a not for profit basis should be dealt with. I expect that this is best done at a national level.

It would be great for our image as a tech savvy country too. We need to attract top tech professionals here and this innovation would be one way of sending out the Ireland Inc. business card to our target audience.

In case anyone might miss this page from Hermes earlier link, valuable q and a from the copyright page at the Gutenberg website:

http://www.gutenberg.org/wiki/Gutenberg:Copyright_FAQ

Aragon wrote:

In case anyone might miss this page from Hermes earlier link, valuable q and a from the copyright page at the Gutenberg website:

http://www.gutenberg.org/wiki/Gutenberg:Copyright_FAQ

The BBC link of Zhou's above says that Viacom found 150,000 instances of material on youtube that breaches their own copyright rules; in terms of the internet it must be chaotic in terms of copyright - and very difficult both to police and moderate. It's Anarchy in a sense, isn't it?

The available information and expertise is in short enough supply too and worse, there is little awareness on the part of posters too because posting on the internet is seen as a lot more casual but it's more or less equivalent to print media but should it be?