aggysaunt — 2009-10-26T18:21:27-04:00 — #1
I'm in Australia. I am thinking about starting up a forum and I am wondering what the legal complications are.
My forum would deal with a geographical locality and I want all the users to come from that location. Is the disclaimer they click yes to at sign up enough to protect me against 'bad stuff' (for want of a more technical term).
There will be moderators and a system of penalising poor behaviour that will be outlined in that disclaimer. Is it enough to set that all out up front? or are there further implications for me as the owner of the site if people do the wrong thing?
The servers are not in Australia. Does that make a difference to the legalities?
herlinda256 — 2009-10-28T00:26:10-04:00 — #2
I don't think that is illegal because some forums are created from the server of the other countries. Forum rules and regulations must be strictly implemented so that you will not be questioned of your forum legality.
aggysaunt — 2009-10-28T15:29:45-04:00 — #3
I didn't think it was illegal to have the servers located in a different country. What I was wondering was if that made a difference to my liabilities.
And I guess what you are also saying is that I should set out my rules and regulations and adhere to them strictly and quickly so that I am seen to be in control. Is that what you are saying?
alexdawson — 2009-10-30T18:45:33-04:00 — #4
If you have a disclaimer, rules, active moderators and a user agreement when they sign up for an account your liability will be minimized, you should be fine.
fallen_angel — 2009-11-19T11:40:37-05:00 — #5
It depends. If your site's hosted on a server in a particular country, the site content hosted on that server is usually bound by the legislation of that country - for example, say your site was hosted in a country that banned tomatoes (for want of an example), and that country banned any consumption of tomatoes, selling of tomatoes, or discussion of tomatoes, technically your site content could be in breach of the legislation of that country, as your data's hosted in that country (whether you'd get away with it though's a different matter).
Is the disclaimer they click yes to at sign up enough to protect me against 'bad stuff' (for want of a more technical term).
I'm not sure of the exact legal position in Australia, but here in the UK, where a site accepts content from the public, a site owner's jointly liable with the poster for any content posted. The main risk for forums is from the possibility of libel claims. Providing a forum's being properly moderated though, and members are clear on what's acceptable and not acceptable (and know that they're not truly anonymous online and that they're liable for anything they post), your liability would be minimised.
For example, I ran a forum until earlier this year. It was a medical support forum. At one point a few members decided they'd "name and shame" doctors they didn't think had treated them properly. If a member had posted something derogatory about a doctor and that doctor had read that on the forum and recognised themself, theoretically they could have sued the member/site owner (me) for libel (there have been documented cases of sites/forums attracting legal action for libel in the past).
Members were initially not pleased when I closed down and removed the thread, and skeptical when I told them they were open to a risk of being sued over it, thinking they were "anonymous", but quickly changed their minds when I pointed out I had a legal obligation to pass any information requested by law enforcement agencies, and that I wouldn't hesitate to do so. After that incident I banned any "naming and shaming" and it was written into the forum rules that while members were free to talk about their medical situations, that doctors shouldn't be named, or any details posted that could lead to a doctor or a hospital being identified. If someone inadvertently mentioned a doctor's name or a new member named a doctor, a moderator would edit the post to remove any identifying information, and remind the member of the rules, and periodically we'd send out general reminders as part of our newsletter about why we didn't allow the naming of doctors, and the vast majority of members didn't have a problem with it. That was a very specific situation though, and we did have a particular problem at one point with members making defamatory comments on the forum - it possibly wouldn't be such a problem for other forums.
Providing that you've got active moderators who quickly moderate inappropriate posts though and you make sure that forum rules are adhered to, you minimise the risk of any problems.
Running a forum's a fine balancing act between playing bad cop and good cop, keeping everyone logged in and happy and keeping things running smoothly from a technical point of view. Some members aren't always happy at being told they can't say certain things, but if they don't like the rules, they know where the 'back' button is.
aggysaunt — 2009-11-19T14:34:06-05:00 — #6
Thanks, Fallen Angel
That is what I was hoping would be the situation and that is what I was planning on. That does put my mind at rest.
alexdawson — 2009-11-19T15:46:02-05:00 — #7
I think these days it's hard to say that anything you run on the web (or participate in) can be problem free however you could arguably state that if you did make visitors accept a license agreement deferring you of all liability for their contributions and it was iron clad enough it would probably stand up in court (in respect to the person posting accepting all liability). I would also recommend implementing a report post situation like we have on this forum which can bring troublesome comments to the moderators attention, it also gives you some kind of argument to state that the person claiming liability against you didn't give you appropriate notice to remove the comment before taking it that far, which wouldn't put them in the best possible light. It really is a case of trying to cover as many bases as you can, solid user agreements, methods of keeping things under control and a way for those affected to get things dealt with swiftly, that'll reduce the chances of lawsuits heavily.
And the good news is, lawsuits on such matters rarely happen. Being sued is something which generally only happens on those cases where all other avenues of resolving the issue go untreated. If your friendly and approach all situations appropriately you will keep the "bad blood" from spilling over in your territory and keep the blame firmly where it belongs, with the poster.
fallen_angel — 2009-11-19T16:02:44-05:00 — #8
Thanks, Fallen Angel
That is what I was hoping would be the situation and that is what I was planning on. That does put my mind at rest.
No probs. Basically, what I used to find was that as long as they know the boundaries and know who's boss, most members are well behaved. Fortunately usually you get few troublemakers, or potential troublemakers, and established members tend to be very helpful in keeping new members and potential troublemakers in check and keeping them on the straight and narrow. I used to say to members that neither I or the moderators were prepared to expose ourselves to the risk of possible legal action, so we'd take any action necessary to prevent that. The vast majority of them agreed with that, and for those that didn't there was the "ban" button. In all the years I was involved with the forum though the number of members we actually needed to ban was probably in single figures and I can count the number of really determined troublemakers intent on maintaining their "free speech" no matter what on one hand.
I look at it this way - if I was inviting people into my home I'd expect them to respect my home and the rules in my home, not trash the furniture and maintain rules of common decency. The same applies on my forum. As the one who pays the bills the buck stops with me, and if they don't like the rules I always told them they were welcome to go and find a forum to post on that didn't mind potential legal action.
This paper covers some of the issues involved with online defamation and some of the big cases (there's also a list of references that includes quite a few that are relevant to Australia).
One of the earliest and best known cases of online defamation cases is that of [Godfrey v Demon Internet Service. The biggest two cases I'm aware of involving online forums though are Irish concert promoter and the [url=http://www.timesonline.co.uk/tol/news/world/ireland/article607534.ece]Oxegen case, and [url=http://www.out-law.com/default.aspx?page=7185]Mumsnet v Gina Ford](http://en.wikipedia.org/wiki/Godfrey_v_Demon_Internet_Service). It is useful to read up on legal issues and previous cases of legal cases on the web so you're aware of some of the potential pitfalls and potential problems to watch out for.
fallen_angel — 2009-11-19T16:12:00-05:00 — #9
And more good news is that all of the major forum softwares have a reporting feature built-in for members to report posts (of course as long as you activate it )
One thing I found was that providing links to reports of legal action against sites in close proximity to where a copy of the forum rules were posted was a very effective way of highlighting the issue for members. Even if it's not a common occurrence, being aware of the potential problems of not self-vetting what you write online can work wonders with members.
calvinhobbes79 — 2010-02-03T05:30:10-05:00 — #10
Found this post through Google and it's a great resource for beginner forum owners. Now I am in Australia as well and have a few more questions and I thought I would just continue this thread as it's not too old.
Do I need to incorporate the forum as a limited liability company for safety from lawsuits. If I do this will my personal assets be safe.
Can I specify the jurisdiction as Australia or do I have to travel to the US if say a US company sues me and argues that the site is hosted in USA.
Now this is a stupid question, but it bothers me. Say if someone is sued for a crazy figure like a million dollars and the person can't pay it, does he just go bankrupt and that's the end of it. OR do you have to keep paying in the future as well.
I am more worried about lawsuits because of users posting images and videos from youtube. I hadn't really thought about lawsuits due to libel until I read this post.
Appreciate any advice I can get.
roblawrence — 2010-02-03T15:38:11-05:00 — #11
With the millenium act, ISP's and service providers are not held liable for their members actions. I would think you'd be safe but for other reasons you would probably want to go with an LLC or other business structure.
system — 2010-02-03T16:55:55-05:00 — #12
What nonsense. The "publisher" of information is legally liable for their content. For a forum, the "publisher" is the forum owner. They are legally liable in the jurisdiction of where they are located. It has nothing to do with the location of the server and nothing to do with the location of where the member posted the information live. You are liable in your courts. In the case of Australia, if someone wants to sue you for content on your forum, they have to go after you in an Australian court under Australian law. BUT, I no lawyer, so get advice.
calvinhobbes79 — 2010-02-04T01:29:47-05:00 — #13
Yes the forum owner is surely legally liable for the content, which is true. However DMCA does say that ISP's are not liable for the content posted by users as long as they either comply with taking down the content and/or also comply with the authorities in reporting the users.
I haven't come across any forum owner who has been sued, but doesn't mean it can't happen.
I just want to be on the safe side. I am going to take other precautions like strict terms and conditions, moderators, complying with takedown notices but I wanted to know if a limited liability company would offer be greater protection.
cbp : Thanks for the response about being tried in Australian court if I am located in Australia, but I have seen responses which say that you can be tried in US court if the site is hosted in US.
system — 2010-02-04T01:42:02-05:00 — #14
nope. I have faced this situation and its not true and had to use lawyers to defend it.
calvinhobbes79 — 2010-02-04T05:33:53-05:00 — #15
You are the first person i have met who has had some experience with the law and seem to be know what you are saying unlike the many amateur forum owners out there (including myself). Hope it's ok if i bug you with a few more questions.
I am just not sure yet about the forum. Its a general community forum and there would surely be photos added, videos embedded by users..possibly even defamation and libel when it comes to politics discussions etc. Now I am going to take DMCA takedowns seriously, have moderators, strict terms and conditions, ban abusive users etc....so in all i am not trying to start something illegal here.
What else do I have to do to be safe ? I can afford to start a limited liability company with say $5000 in assets.
So say if someone goes to length of suing me even after even after i have behaved and complied with them, how do i pay for the lawsuit..that $5000 will just be blown up in minutes i guess. Does the corporation go bankrupt or is there some protection for small industries or do I have to pay the cost from my personal account.
If you can please share your knowledge it would be appreciated..i won't hold your opinion accountable.
system — 2010-02-04T20:51:14-05:00 — #16
Personally, I would not be worrying about it. Just have guidelines that your members adhere to and remove offending materials. The chances of this happening, given that there are millions of forums is pretty low as it just does not happen.