Duck and cover: LJ and incest purging

[green_amber]

Background: I joined this community as an internet lawyer/academic, also from general sf fandom - I am neither a slash fan nor a fiction writer. Also I'm a UK lawyer, not a US lawyer. So I imagine I'm an oddity here. But I find this whole storm weird, just as I did Nipplegate. LJ is a private site. It is not a state nor a common carrier nor a "public broadcaster" with positive obligations as to content, like the BBC in the UK. It is basically a business, one which rather oddly and sweetly does not seem to try to make maximum profits when it could (charge everyone, or show everyone ads.) No one would argue that Wallmart couldn't decide whether or not to stock Hello Kitty vibrators, say, even if they were (as is likely) perfectly legal. It's Wallmart's store. And if they think those vibrators are a bit dodgy, either legally or in terms of alienating or annoying certain customers, so be it. If they were stocking stuff they thought might or might not be legal, there isn't a lawyer in the world who wouldn't advise them to dump that stuff; and that's WALMART - who have millions of dollars and lawyers to fight prosecutions or civil suits.

As for the particular bit of the storm over 6A changing T & C in mid stream - I've looked at those terms and you all clearly (for legal values of "clearly":-) agreed on joining that LJ could change the terms at any time:
"cl XIII REVISIONS
LiveJournal may at any time revise these Terms of Service by updating this posting. By using this Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then-current Terms of Service to which you are bound."


6Apart, I strongly imagine, have absolutely no interest in becoming a style and content dictator, even though they're quite entitled to be one, as it's their site. They're still mostly leftie california volunteers on staff after all. And their business model such as it is is clearly based on not alienating large groups of clientele. But faced with large amounts of risk, they're simply covering their back, which every lawyer in the world, including me, would strongly advise them to do, especially given they mainly provide the service for free.

The alternative is the likelihood of them at some point being sued or prosecuted out of existence just like Napster and Grokster. Would you rather have a world with LJ in it, albeit mildly policing the most extreme and likely to be dodgy of its boundaries, or a world with no LJ?

LJ isn't a "place" in cyberspace. It's a publisher and as much subject to laws and economic pressure as you and me. And whatever (some!) Americans think, the First Amendment (and the CDA and the DMCA) is not a global law and will not exculpate LJers (and 6A as the distributor and publisher) in every court in the world. LJ may currently be scared of a possible case in the US but they are also probably far far more scared of a future case in the UK or Saudi Arabia, or anywhere else they have readers, and, perhaps, assets (or plan to visit at some point).

Why do you people feel (or do you not? but this is the vibe I get..) that LJ has a moral duty to defend you over and above that of a normal business? Of, say, AOL? or Facebook? Isn't it good enough that they provide a platform for free and make efforts, it seems, not to "censor" (ie reduce legal risk) until someone with an agenda,like WFI, makes waves too big to ignore?

Alternately, would you pay say $10 a head, over any usual subscription fee, to provide LJ with a legal fighting fund? that's one way forward.

BTW I am organising a funky workshop on law and popular culture in London in SEptember - http://www.law.ed.ac.uk/ahrc/gikii/ - if anyone here would like to put in an abstract (real lawyers only, please) please do:-)

Comments

[pigeonhed.livejournal.com]

I'm not think along the lines of slashfan/pedo. I am concerned that for example an Incest Support Group will be blindly deleted because it says 'Incest' ooh that's a bad thing and 'Support' ooh that means they encourage it.

So if 6A had come out and said, 'look, we're concerned about the legality of some of these sites so we would like you to remove anything illegal before we are forced to, and if you can demonstrate a valid reason for discussing these matters on your site we will allow you to remain,' then many of those up in arms would appreciate that 6A had covered their backs in a reasonable manner.

[surliminal.livejournal.com]

Given that it is uneconomic for LJ to control risk any way except by searching jnks by interests or keywords, what is to stop a community for incest survivors that is deleted (say) simply saying, hang on, please have a look and put us back if you agree we're legal? communication would be more effective than organising boycotts etc.

[pigeonhed.livejournal.com]

I may be wrong but my understanding is that as of this afternoon LJ had declined to respond to such requests and have apparently informed deleted users that they have no right of appeal. Nor has there been notice served during which time potentially offensive material could be removed. As you say, communication would be more effective.

You said that LJ is entitled to change its TOS at any time, but this is not what they have done in this case. The TOS as published appear unchanged BUT the abuse team have been given instructions which explicitly contradict the TOS. Surely this is legally dubious ground for 6A? At the very least it is evidence that this action has been rushed and not thoroughly planned first, ie a panic reaction.

[surliminal.livejournal.com]

OK I give in - we're on to execution not legality now and you def know more about that than me! :-)

[pigeonhed.livejournal.com]

Well for me it isn't really a legal issue as a matter of heavyhandedness and panic. I understand why other people want to question the legal side of it, and I think that in some ways the clumsy nature of this reaction has possibly raised legal grey areas that 6A haven't anticipated.

[andrewducker]

I'm with you on that. I don't care about the legality - I care about the way it's been done. When "the powers that be" start clamping down without even a statement clarifying the scope of their clamping, everyone worries. If LJ had put up a post saying "We're getting rid of anything with a hint of child molestation. If we get you by accident then apply at this URL to be reinstated." then people would be a lot happier...

[rozk.livejournal.com]

I have got some of this at second-hand, but as I understand it, the problem is that LJ originally intended to have a sensible appeals procedure, but then their lawyers got worried that, if they allowed appeals, or allowed people to access their journals to remove offensive material, or copy stuff for their records, LJ might subsequently be liable for knowingly allowing someone to conceal evidence of a crime. So e.g. the incest survivors have to be penalized because they got caught up in a mass sweep, and some actual criminals might abuse the appeal procedure.

I take your overall point, but LJ have allowed themselves to be paniced by a few quite unpleasant people - the sort of people who are as obsessed with illegal immigrants as they are with paedophiles and who, it seems, deliberately infect all visitors to their site with malware. (I had no spyware when I checked this morning and 62 items after checking out Warriors for Innocence; other people have reported the same).

[surliminal.livejournal.com]

That's very interesting.

Some heartening news from this side of the pond though - when I did my survey of UK ISPs (yes this is all very coals to Newcastle for me I'm afarid) I found that almost of all of them rather than simply taking down on notice, actually gave the subscriber a chance to remove the offending stuff first.

I don't think anyone thinks WFI are other than very dodgy.