RE: TOS question for Mods

RE: TOS question for Mods (Full Version)

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NorthernGent -> RE: TOS question for Mods (12/29/2014 2:45:33 PM)
quote: ORIGINAL: Bhruic A question for the Mods, or any other knowledgeable person... It seems to me that in the Terms of Service, the articles 6.3 and 7.3.13 are in conflict with each other. Can anyone clarify that? The only thing I can think of is, perhaps, some very specific definition of the word "obscene". For reference: 6.3. You acknowledge and understand that some of the Materials contain graphic visual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by Our Website and that You are not offended by such Materials, and to the contrary, that You are accessing this Website specifically because You enjoy such expressive content and You wish to view such Materials. You stipulate that you access this Website freely, voluntarily, and willingly, and for Your own personal enjoyment. 7.3.13. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way; My reading of the above is that the former relates to the owners' 'right' to publish pornography on the site, and the latter states that members do not have the 'right' to publish pornography on the site. After all, 'obscene' does not mean illegal, it simply means pornographic of some description; and in English law (although it may be different in US law) in the event you mean illegal then you would have to state illegal for it to be binding (it would not be enough to state 'obscene' and expect the reader to deduce illegal). I'm curious as to what the owners are trying to achieve with these two sub clauses, and I agree that the clauses are extremely vague. Usually legal documents are vague in order to be all encompassing, but on occasion they can come back to haunt you when challenged because they should have stated specifics and accompanying penalties.

LookieNoNookie -> RE: TOS question for Mods (12/29/2014 5:27:25 PM)
quote: ORIGINAL: Bhruic A question for the Mods, or any other knowledgeable person... It seems to me that in the Terms of Service, the articles 6.3 and 7.3.13 are in conflict with each other. Can anyone clarify that? The only thing I can think of is, perhaps, some very specific definition of the word "obscene". For reference: 6.3. You acknowledge and understand that some of the Materials contain graphic visual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by Our Website and that You are not offended by such Materials, and to the contrary, that You are accessing this Website specifically because You enjoy such expressive content and You wish to view such Materials. You stipulate that you access this Website freely, voluntarily, and willingly, and for Your own personal enjoyment. 7.3.13. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way; The Mods are (quite) busy. I will speak for all Mods. Your question?

LookieNoNookie -> RE: TOS question for Mods (12/29/2014 5:28:42 PM)
quote: ORIGINAL: ExiledTyrant Ambiguity and contradiction allows the site to separate from users. This is a world wide site and laws vary from state to state, territory to territory, and country to country. Some things are legal some things are not, it is in the best interest of the site (the owner in particular) to neither condone nor condemn what is being done here so he can maintain legal separation. Jus sayin I control the laws. I will deem what is appropriate or not. Spew.

LiveSpark -> RE: TOS question for Mods (12/29/2014 5:29:59 PM)
quote: ORIGINAL: LookieNoNookie quote: ORIGINAL: ExiledTyrant Ambiguity and contradiction allows the site to separate from users. This is a world wide site and laws vary from state to state, territory to territory, and country to country. Some things are legal some things are not, it is in the best interest of the site (the owner in particular) to neither condone nor condemn what is being done here so he can maintain legal separation. Jus sayin I control the laws. I will deem what is appropriate or not. Spew. I don't mean to complain but could you be just a tiny bit more specific. Thanks.

LookieNoNookie -> RE: TOS question for Mods (12/29/2014 7:49:24 PM)
quote: ORIGINAL: LiveSpark quote: ORIGINAL: LookieNoNookie quote: ORIGINAL: ExiledTyrant Ambiguity and contradiction allows the site to separate from users. This is a world wide site and laws vary from state to state, territory to territory, and country to country. Some things are legal some things are not, it is in the best interest of the site (the owner in particular) to neither condone nor condemn what is being done here so he can maintain legal separation. Jus sayin I control the laws. I will deem what is appropriate or not. Spew. I don't mean to complain but could you be just a tiny bit more specific. Thanks. Go ahead and say it....I'm re-writing TOS as we speak based on community input.

Bhruic -> RE: TOS question for Mods (12/29/2014 9:57:15 PM)
quote: ORIGINAL: MariaB A well written terms of service is to protect the owners of the site from the action of its members. Whilst Bhruic's quotes on TOS clearly seem to contradict one another, I'm sure the owner of CS took on legal advice when writing in his terms of service. Obscene is defined by territory and its up to us, the individual user, to find out and understand the obscenity laws of our own land. Quite right. The language serves to protect the owners. My point was simply that very little would have had to be added to create clarity for the users on what is permitted.

Bhruic -> RE: TOS question for Mods (12/29/2014 10:02:17 PM)
quote: ORIGINAL: SinFix Cause my damn brain tis not functioning well today.. The whole thing about naked pics was never actually in the TOS but a "supplement" that was put in when you uploaded pictures.. I agree. But because it was not a part of the contractual agreement, and is - in some ways - in conflict with the contractual agreement, one could view it as a simple suggestion or policy... and theoretically, if one was censored on that basis, one could refer back to the TOS and argue against such censorship legally.

NorthernGent -> RE: TOS question for Mods (12/30/2014 3:23:26 AM)
quote: ORIGINAL: Bhruic quote: ORIGINAL: SinFix Cause my damn brain tis not functioning well today.. The whole thing about naked pics was never actually in the TOS but a "supplement" that was put in when you uploaded pictures.. I agree. But because it was not a part of the contractual agreement, and is - in some ways - in conflict with the contractual agreement, one could view it as a simple suggestion or policy... and theoretically, if one was censored on that basis, one could refer back to the TOS and argue against such censorship legally. 6.3 is a clause which states the owners/site will issue pornographic material and users accept this ("....you are aware of the nature of the materials provided by Our website"...); 7.3.13 users of the website will not distribute their own material, i.e. not sanctioned by the owners/site (...."that You will not use our services in order to...." There seems to be no contradiction within those two clauses (in theory). The owners/site are protecting themselves against any claim relating to material they have issued and material issued by anyone using the site. It is fairly clear what is being permitted: you are permitted to view the material issued by the site/owners;you are not permitted to issue your own material or interact with that issued by another user in breach of TOS/contract. I doubt very much you would have a legal case because in 7.3.13 it states: ".....or in any other way interact with...." this type of clause is standard legal practice associated with any contract - it is a catch all and is intended to cover anything they haven't specifically stated that may give rise to a claim. But, in practice users of the site do issue pornographic material in their profile. I assume there is a clause, or sub-clause, somewhere within the TOS that states something like: "....unless sanctioned by the site/owners..."

domincalifornia -> RE: TOS question for Mods (12/30/2014 4:35:39 PM)
quote: ORIGINAL: Bhruic quote: ORIGINAL: MariaB A well written terms of service is to protect the owners of the site from the action of its members. Whilst Bhruic's quotes on TOS clearly seem to contradict one another, I'm sure the owner of CS took on legal advice when writing in his terms of service. Obscene is defined by territory and its up to us, the individual user, to find out and understand the obscenity laws of our own land. Quite right. The language serves to protect the owners. My point was simply that very little would have had to be added to create clarity for the users on what is permitted. Let me clarify it: Don't break any laws. If you're confused whether something is against the law, don't do it. If you do it anyway, you're on your own. Beyond that, if you really need the TOS to spell out in minute detail if your actions are "permitted," stop doing it. Right now.

Bhruic -> RE: TOS question for Mods (12/31/2014 6:53:28 AM)
quote: ORIGINAL: domincalifornia quote: ORIGINAL: Bhruic quote: ORIGINAL: MariaB A well written terms of service is to protect the owners of the site from the action of its members. Whilst Bhruic's quotes on TOS clearly seem to contradict one another, I'm sure the owner of CS took on legal advice when writing in his terms of service. Obscene is defined by territory and its up to us, the individual user, to find out and understand the obscenity laws of our own land. Quite right. The language serves to protect the owners. My point was simply that very little would have had to be added to create clarity for the users on what is permitted. Let me clarify it: Don't break any laws. If you're confused whether something is against the law, don't do it. If you do it anyway, you're on your own. Beyond that, if you really need the TOS to spell out in minute detail if your actions are "permitted," stop doing it. Right now. Within the scope of what is legal, different web sites can have vastly different ideas of what strictly legal activity is acceptable (permitted) and what is not. The question is not about what is illegal, but about what is permitted. If I have a web site, I am not obligated to allow users to do anything that is not illegal... My TOS can restrict all kinds of legal activity if I choose. And if I so choose... it behooves me to be unambiguous about the details. Certainly there are places on the planet where posting a nude picture may be illegal, but it is unclear to me why the site would imply this is not permitted, and outside of the TOS... Although... It is relevant, I guess, that something may be legal in an other country that is illegal in the country the site is registered in. Creating a problem for the site... that a user could engage in activity that is legal in their country, but could create legal problems for the site owners in their jurisdiction. This, I guess is the source of the ambiguity for protection purposes. I just find it odd that the TOS does not specify a legal jurisdiction. Normally, if a site is registered in the US, for example, such a legal document would site the laws of that jurisdiction. There DOES seem to be confusion among users here about what is permitted and what is not, and law does not seem to be the issue in that confusion.

Bhruic -> RE: TOS question for Mods (12/31/2014 7:18:16 AM)
Actually... all this is clarified by article 3.1 which essentially says "Post anything you want. We are indemnified. If it is illegal, we may remove it." Later articles give details on policies of what is not permitted in detail. 3.1. The Website provides a forum through which adults may seek and establish personal contact with one another through the use of the Website's capabilities for displaying photographs and written materials provided by its members. The Website contains images and content, including but not limited to text, images, messages, and other information. All Materials displayed on the Website are protected by the First Amendment rights to Free Speech, Free Expression, Freedom of Association and Freedom of the Press, and parallel provisions of state constitutions. The Website is dedicated to assisting like-minded individuals locate, and communicate with, each other. We are not responsible for the content of communications, statements, opinions, posting or other information placed on the Website by third parties, via any discussion board, forum, or public area of the Website. Such information is intended to be protected by the immunity provided by Section 230 of the Communications Decency Act ("CDA") which immunizes this Website, and its agents and employees, from any claims relating to the content of information posted by third parties. We do not act as a censor of such material. You acknowledge that the Website may offer online content that could be deemed "adult," "offensive," or "erotic" in nature. While We may choose to remove content that is identified as illegal, is stolen, or which violates Our policies, We do not edit, review, or change posts made by third parties prior to the information appearing online.

littleladybug -> RE: TOS question for Mods (12/31/2014 10:54:20 AM)
quote: ORIGINAL: Gauge The difficulty arises when one tries to define what is obscene and what is not. I always default to quoting US Supreme Court Justice Potter Stewart on this issue (Jacobellis v Ohio): "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that" At least, here in the US, there's no black and white standard for "obscenity", federally speaking. Sure, there are "criteria"...as amorphous as "the average person, applying local standards, must see this as appealing to the prurient interest". And, that there's" no seriously political, artistic or literary value to it". Considering this..."I know it when I see it" seems as good a standard as any... Practically speaking, the TOS, as others have said, are a CYA move. How can you define it when you don't have a universal definition? I've seen warnings on sites, wherein you have to "virtually assure" that you are over 18, and are legally able to view this sort of content in your area". Any site like this needs to put the onus back on its users to know what the law is in their area. What is considered "obscene" here may be considered "art" in the next town over. I don't see how else a site that caters to people around the world could continue to function.

Kana -> RE: TOS question for Mods (12/31/2014 12:48:05 PM)
Sometimes broad and ambiguous is good. It gives the site lots of room for maneuvering and many loopholes to drive decisions through as they like. Wiggle room can be a positive thing. Speaking as a guy who, among other things, vets large contracts for a living, its my belief that when lawyers use elliptical language, they are leaving things open for down the road. It's a very intentional thing when they don't use "Brass tacks" lingo, because that laser focused wording can be used against them so they leave safety nets any first year law student could drive a squadron of Panzer tanks through.

seekingreality -> RE: TOS question for Mods (1/2/2015 8:28:07 PM)
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