&quot;diamond&quot; ♦ moderators and the law of agency Are our moderators (♦) legally considered agents of Stack Exchange, Inc. from the standpoint of other non-moderator community members? I've reviewed the moderator agreement, and note it says: I acknowledge and agree that I am an independent volunteer moderator for one or more sites operated by Stack Exchange, Inc. and I am not an employee, agent or representative of Stack Exchange, Inc., and I have no authority to bind Stack Exchange, Inc. in any manner and I am solely responsible for my statements and actions. I attest that my statements and posts do not represent the views, opinions or actions of Stack Exchange, Inc. I observe that the above is in a two-party agreement that regular users may not even be aware of. It seems evident that the paragraph that answers the question for any claim a moderator might bring directly against the network. But can a social media site disclaim the agency of moderators concerning other users? Note that I'm assuming good faith applies here and that the moderator(s) have not knowingly violated any aspect of their agreement. But in the hypothetical, assume a moderator's words and actions have caused harm to one or more other users. For example, let's assume the harm is a common-law tort in the US. I'm vaguely aware of CDA section 230 but don't understand how that might apply here. The same question might equally hold for companies like Facebook and Twitter, but I don't know because I don't even like those services. Gosh no! Note: If SE wouldn't assume responsibility for the well-intentioned acts of its moderators, it would seem unwise to agree to the company's terms. But I'm not a lawyer, nor am I considering acting as a moderator. Neither role would be well-suited to my admittedly skeptical thought processes. I'm just asking for general education. Further hypothetical: Let's assume a moderator, in good faith, edits the contents of a question, and changes its meaning in a way that reflects badly on the original poster's intent and reputation. Even if well-intentioned, might that action of the moderator, while still associating with new text with the OP author's name, become a defamatory act? Just to take this hypothetical to an extreme, perhaps the original question asks about a &quot;Blackie Chen&quot;, who is a real person. The moderator, who might be unfamiliar with the fact that this is Blackie's well-documented nickname goes in and edits the name to &quot;African American&quot; or worse yet &quot;African American Chen&quot;. Assume that Blackie is neither African nor American and that the moderator is operating from an entirely different cultural context than the author or subject, perhaps South Africa. The driving, non-legal problem in the hypothetical is the overapplication of political correctness. But when an online service appoints moderators who are from different countries than the author, seems to create risk. For example, the moderator might be in a country where tort law doesn't apply. Assumptions based on the hypothetical New York law applies under the agreement(s) In New York, defamation is strictly common law, not statutory. The case law is probably out there, but it's not the primary point of the question. In the moderator's country, an entirely different interpretation of what the law is might be apparent. He's not a lawyer, but he keeps up with current events. This article describes the legal system from the POV of the moderator. The moderator's system of laws has some basis in common law, so he's not totally unaware. The South African constitution explicitly says: Human dignity Everyone has inherent dignity and the right to have their dignity respected and protected.
Stack Exchange has given moderators certain authorizations or powers, but that does not automatically make them agents. The specific provision in the agreement that they are not agents would make it harder to argue that they are in fact agents in a particular case, but if they are in fact acting as agents they might be held to be agents in some situations. In order to hold SE liable, a plaintiff would need to shoe actual harm by a person acting as a moderator. Such a plaintiff would need to show further that the mod was acting in accord with the delegated authority given to mods, or in ways approved or encouraged by SE. If the action was a breach of the moderator agreement, and in no way approved or encouraged by SE, it might be hard to show that the mod was acting as an agent of SE in that instance. Without specific context, such as how the mod is alleged to have harmed the plaintiff, and how SE encouraged or permitted this, or failed to take reasonable steps to prevent such harm it is hard to give a specific answer, or an assured one. CDA Sec 230 says, among other things, that the operator of a service, such as SE, will not be treated as the speaker or publisher of statements posted by users, and in general will not be liable for such statements. (That is particularly section 230 (c) (1).) But there are many details and without specifics again there is little one can say. CDA section 230 (c) (2) (A) provides that a service provider (such as SE) or a service user shall not be liable for: any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; and CDA section 230 (c) (2) (B) provides that a service provider (such as SE) or a service user shall not be liable for: any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). Given all this, it is hard to see how a post or an edit of a post made in good faith could be a cause of action against anyone, or how a post made in bad-faith could be a cause of action against the service provider unless they knowingly supported or encouraged it. The added hypothetical says: Let's assume a moderator, in good faith, edits the contents of a question, and changes its meaning in a way that reflects badly on the original poster's intent and reputation. Even if well-intentioned, might that action of the moderator, while still associating with new text with the OP author's name, become a defamatory act? Since the complete editing history is always available, one click away from any post, and the user name of the most recent editor is always displayed right under the post, adjacent to the link to the history, it is hard to see how a reasonable person could believe that an edited post was the work of the original poster. Beyond that, to constitute defamation there must be a purported statement of fact that is false, and harm to the reputation of the would-be plaintiff. Normally such a false statement must be &quot;of and concerning&quot; the plaintiff. It is hard to see how A making a statement, and B editing it, could create defamation of A. B could add defamation of some other party C, but then it could be easy to show that this was B's writing, not A's, so A would have no liability, and SE would have no liability for B's actions, as posting defamation is certainly not an approved activity. Moreover, it does not require moderator status to edit someone else's answer. Any user with a certain reputation level (1,000 on Law.SE, the level varies by site) my edit any post. Currently about 160 users have this privilege on law.se, while there are only 2 moderators. On other sites the numbers will often be larger. Since editing another's post is not a moderator privilege, it is hard to see how being a moderator is relevant to doing so improperly. And since CDA sec 230 (c) (2) (A) protects posters for liability for edits or deletions made in good faith, it is even harder to see any liability here.
LegalZoom did not get it wrong. The case Masterpiece Cakeshop v. Colorado Civil Rights Commission was under Colorado law (hence it was against the Colorado Civil Rights Commission), not federal law. LZ stated that 20 states have enacted laws against discrimination based on sexual orientation, and Colorado is one of those states. The issue was heard by SCOTUS because the plaintiff raised claims under the Free Speech and Free Exercise Clauses of the First Amendment, hence he could make a federal case of it. A prior case (Azucar Bakery) cited by LZ was about refusing to make a cake with anti-gay slogans, and was decided by the commission. Here is a brief filed by that plaintiff in that and two related cases, arguing a pattern of religious discrmination. LZ got it mildly wrong in saying "the court ruled that this was not discrimination because...", because the case did not go to court, it ended at the Colorado Civil Rights Commission. The second case appears to refer to Charge No. CP2018011310 a complaint filed against Masterpiece, where the same commission found probable cause for an anti-discrimination proceeding. In that proceeding, the Colorado Civil Rights Division finds that complainant Scardina "adequately shows that the Respondent's reason is pretext". This led to a complaint against the commission in US District Court (Civil Action No. 18-cv-02074-WYD-STV). There was a motion to dismiss which had partial success, but which was not about the substance of the case (it had to do with immunity, standing, abstention doctrines). The case was later dismissed, because the parties settled. So at no point did a court rule on the substance of the "pretext" issue – on this point, I think LZ overstated the significance of the commission's decision.
No. I can't give a more detailed answer without reference to a specific statute. But just about every state anti-bullying statute in the U.S. restricts the definition to...well, bullying. There is a good summary of state bullying and cyberbullying statutes here. The laws are varied, but they invariable contain words like "harassment", "abuse", "threatening," "fear," and "hostile environment." Would it be possible to "cyberbully" someone on Stack Exchange under some of these statutes? Sure. You could do it in comments; in answers; even in questions. "Question: Is Bill in my algebra class a dork, or a tool?" Comment: "This is a terrible question, and I'm going to burn your house down. Downvoting." You could probably fit something like that under some of the broader statutes--although they still for the most part haven't been tested for First Amendment issues. But I don't know of any statute broad enough to include downvoting a question or answer, on a site people post on knowing that the whole purpose of posting is to allow their posts to be upvoted and downvoted. If there was such a statute--and again, I don't know of any--it would almost certainly be unconstitutional. There is no law against hurting people's feelings, at least in the United States, and a law that allows people to seek legal redress for someone saying "I disagree with you" is pretty much the poster child for a First Amendment violation.
It's complicated You still own your own posts First off, you own everything that you originally created. Posting it on Stack Exchange doesn't affect your rights to your own content. Incorporating suggestions If you copy any of the text from posts that were created by others, you must comply with the CC BY-SA license. The exact version will depend on when the content was posted, and can be viewed by clicking the &quot;Share&quot; link or viewing the post's timeline via the clock icon on the left. Currently, new posts are licensed under CC BY-SA 4.0, which requires you to (basically) provide attribution with the creator's name, a link back to the content, and an indication of whether changes were made. A more detailed description of the exact requirements is here. You would also be required to license the work that you incorporated it into under the same license. However, game mechanics aren't copyrightable. If you merely used mechanics suggested in the posts without actually using the actual creative expression (for instance, names or description text) from the posts, you would not be required to provide any attribution or use any particular license, because you didn't use any copyrightable material from the post. A thank-you would still be nice All that said, it's still a nice thing to do to provide some sort of informal thanks to those who provided valuable assistance, even when you're not legally required to do so.
The notice has a lot to do with legacy requirements in the United States to claim the copyright to a work. Up until 1989, the copyright notice was required. Today, the statements are mainly maintained to protect against "innocent infringement" which might reduce what a content owner can get in court. What exactly do those terms entail? That the owner stated owns all rights and you may do nothing with the content. My biggest concern is this: by writing that, is the company claiming to own everything on the website, even potentially copyrighted user-submitted material? That's exactly what they are doing. Depending on the terms of the specific site, content contributors generally either assign copyright to the site owner or license the content in a way that allows the site owner to do exactly what they want with it. Site creators with the smarts or money to do it right/get someone to do it right usually state something like: Copyright [Site Owner] and contributors. Other sites (like this one) state specifically what they hold the copyright to: site design / logo © 2015 Stack Exchange Inc THIS IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY REGARDING YOUR SPECIFIC SITUATION.
The question actually asked, "what legal theories would support or harm...", is somewhat unclear. But what the questioner seems to be asking is, basically, what would happen if you tried it? The answer, it seems to me, is pretty straightforward. In the hypothetical case, you have been publishing a notice for years, saying "I have not been served with a subpoena." You then get served with a subpoena that includes a gag order. The gag order, presumably, includes wording prohibiting you from revealing the existence of the subpoena. You then cease publication of the warrant canary. By doing so, you have revealed the existence of the subpoena, and you are in violation of the gag order. You will be subject to whatever penalties you would be subject to if you violated it in some other way; for example, by publishing a notice that said, "Hey! We got a subpoena! It's a secret!" The distinction between revealing the existence of the subpoena by action, rather than by inaction, is a false one. It's exactly the kind of cutesy legal formality that non-lawyers love to rely on, but real judges ignore. If you tell someone: "Hey, you know John Smith's three sons, Joe, Ted, and Bill? Joe and Ted are good people; they have never molested any children. As for Bill--well, I don't have anything to say about Bill." If Bill is not a child molester, you have defamed him, and you are not going to convince a judge otherwise. The EFF link you link to tries to claim it'll "work" because courts are reluctant to enforce speech. Even if that were true, that might mean your canary would be effective in the sense of giving the public notice of the subpoena. That doesn't mean you wouldn't be liable for giving the public notice. For example: I put up a billboard saying "Bill Smith is a pedophile." Even if the court can't force me to add the word "not", that doesn't mean the billboard isn't defamatory. Realistically, though, courts compel speech all the time. Court-ordered apologies, disclosures, and notices are not unusual. And if ever a court would be inclined to compel speech, it would be in a situation like this one, where a company intentionally set out to get around a gag order with this kind of convoluted sea-lawyering.
Can you unambiguously, legally, and conclusively determine what is and is not a "porn site"? I'm sure many are easy... but what about that "Swimsuit modeling" site, or the "Artistic Nudes" site featuring classic French Renaissance paintings? There will always be a grey area. What makes a "site" in a legal sense? Consider all the blog sites filled with user generated content: If just a few pages out of tens-of-thousands are hardcore, indisputable porn, would you require the entire domain to be classified XXX, even if 99% of its content is completely innocent? Who would enforce this? Are you proposing an "Internet Police" force to review all new domain names and their content before they get approved? That is called "Prior Restraint on Free Speech", and is established law. Suppose a site does get approved, then immediately changes the content of their pages from Cooking Recipes to hard-core porn. Who is going to review and approve every update to every website, when sites are updated constantly?! Maybe you're proposing that any individual who finds porn on a .ORG site has the right to sue for damages? This would likely clog the courts with endless vigilante lawsuits about what content belongs on which domain. This is a flat out horrible, poorly thought out idea.
Providing they meet the basic requirements (see What is a contract and what is required for them to be valid?) then they are binding contracts. Consideration is not an issue: the site provides the content, the user provides eyeballs on it. Consent is the major stumbling block. Online Terms of Service are either presented as browsewrap or clickwrap or sign-up wrap. A browsewrap provides notice of the terms of service but there is no specific user assent to them. A clickwrap requires the user to check a box specifically about agreeing to the terms (with or without user registration). A sign-up wrap presents user registration with a "Sign up" and provides notice to the terms at the point of service but doesn't have a check button specifically for the terms. As an example, Stack Exchange provides two types of wrap. For the casual user, there is a Legal link at the bottom of the page - a browsewrap. If you sign-up, you go to a page that says "By clicking "Sign up", you agree to our terms of service, ..." - a sign-up wrap. Whether a Terms of Service is an enforcable contract depends on whether the user provided notice, whether the user gave consent and whether enforcing the agreement is conscionable. Clickwraps and sign-up wraps have the advantage over browsewraps in the first two of these. Assuming that the contract terms are unremarkable (i.e. they are within the range of "normal" for that type of contract) a clickwrap will normally create an enforcable contract - Forrest v Verizon and Motise v America Online being the relevant case law. Browsewraps are more problematic: Specht v Netscape said no contract but where the browsewrap is shown prominently and repeatedly they can form an enforceable contract - Hubbert v Dell and Cairo v CrossMedia Services. Zaltz v Jdate was a sign-up wrap and did create an enforceable contract. All of these turn on the facts of how the information was was presented to the user. For example, in Meyer v Kalanick the Second Circuit said: Where there is no evidence that the offeree had actual notice of the terms of the agreement, the offeree will still be bound by the agreement if a reasonably prudent user would be on inquiry notice of the terms.[sic] So, in general, Terms of Service are enforcable as a contract if a reasonably prudent user could, on inquiry (e.g. by clicking a link), make themselves aware of the terms. This also explains why skrinkwraps (when software came on actual physical media in a shrink-wrapped box with the terms inside) were not enforcable - a reasonably prudent user could not inform themselves of the terms without unwrapping a product they didn't yet own.