The Cases

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In some situations, a person may be held liable for the actions of another that is in their employ or following their directions. Vicarious liability is the legal concept which allows for one party to be held liable for injuries or damages sustained by another party, despite having had no active involvement in the incident. People or legal entities that are typically charged with vicarious liability include individuals in supervisory positions or companies. This is because these two groups bear the responsibility for the actions of their employees.

One of the many legalities of Forumotion boards that I've noticed (and I'm quite annoyed about...) is the Terms of Service hoobla that new users must agree to when registering on FM-hosted boards. For one, I know that Forumotion (aka Forumactif) is a French-based company, so their laws differ than those from other countries (especially countries outside the EU/UK).

Sites are at risk everyday of being accused of stealing work, breaking copyright law, or simply dissatisfying a client. What many young web masters aren't aware of are the ramifications of dissatisfying the wrong client (member/patron/user/etc.). Did you know that the class action lawsuits against the popular social network MySpace have surpassed an accumulation well over billions of US Dollars mostly for faults in their privacy policy? ^{[First Case Study]}

As it stands, here are the default "rules" of all FM-hosted boards:

Spoiler:

Let me assure right now that if there was a class-action law suit against your FM-hosted forum... you'd fail... miserably. Executions have gone through because of a typo. So why are you defending your site with a poorly translated, grammatically incorrect, and too-personal (if I do say so myself) Terms of Service. By the way, those actually aren't "terms of service", those are simple, childish rules. The only ToS you may be familiar with are Forumotion's ToS for their clients (you). But those Terms of Service aren't there to protect you, they're there to protect the company (being Forumotion).^{[Second Case Study]}

So now you're a sitting duck for any opportunistic lawyer with a passion for winning cases left and right; no terms of service, no privacy policy... nothing to guarantee yourself and your members protection.

The Fix

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This is a common case of respondeat superior (Latin), or vicarious liability. In order to avoid such a case, you need to set up an official ToS for your website; something that your clients (members, user, etc.) must agree to upon registering their use of whatever you have to offer (be it a forum membership, the purchase of an actual product, the use of a chatting service, etc.).

Doing this on a Forumotion board is easy. If you are running PhpBB3 or Invision, you won't be able to edit the rules template; however, you can create a separate HTML page informing guests that they must agree to those terms before clicking on the Register link (by removing the Register option from the nav bar and replacing it with a link to said HTML page). You can then set up your own navigation through the your new ToS, through Forumotion's crappy rules, and finally to the registration process.

Now how do you create a neat Terms of Service and Privacy Policy? First off, you must determine and explicitly state which jurisdiction you fall under. Forummotion (party 1) falls under French jurisdiction, but anything you do, according to international law, will be judged under the jurisdiction of your state, country, territory, etc.

So let's say you're in the U.S. and you live in California. Jurisdiction, concerning the actions you take on your site and any litigation that may come against you, will fall under the state of California. This is true because any litigation against you (if it is not the first and hosting party (the vendor)) would come from the third party (the user).

Whoa there, Rec; you lost me!

I'll back up for you. First we have three parties, correct? Forumotion is the first party (the vendor). You are the second party (the client). And anyone using your services is the third party (the user). Any litigation that the third party has will not fall under French jurisdiction, but the jurisdiction of the country/state/territory you are operating from (of course, if you're operating in France, then that just makes things a whole lot easier, now doesn't it?).

To help you out, this is the template I normally use for my Terms of Service and Privacy Policies:

Code:



<h2>
   Web Site Terms and Conditions of Use
</h2>

<h3>
   1. Terms
</h3>

<p>
   By accessing this web site, you are agreeing to be bound by these
   web site Terms and Conditions of Use, all applicable laws and regulations,
   and agree that you are responsible for compliance with any applicable local
   laws. If you do not agree with any of these terms, you are prohibited from
   using or accessing this site. The materials contained in this web site are
   protected by applicable copyright and trade mark law.
</p>

<h3>
   2. Use License
</h3>

<ol type="a">
   <li>
      Permission is granted to temporarily download one copy of the materials
      (information or software) on [company name]'s web site for personal,
      non-commercial transitory viewing only. This is the grant of a license,
      not a transfer of title, and under this license you may not:
      
      <ol type="i">
         <li>modify or copy the materials;</li>
         <li>use the materials for any commercial purpose, or for any public display (commercial or non-commercial);</li>
         <li>attempt to decompile or reverse engineer any software contained on [company name]'s web site;</li>
         <li>remove any copyright or other proprietary notations from the materials; or</li>
         <li>transfer the materials to another person or "mirror" the materials on any other server.</li>
      </ol>
   </li>
   <li>
      This license shall automatically terminate if you violate any of these restrictions and may be terminated by [company name] at any time. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
   </li>
</ol>

<h3>
   3. Disclaimer
</h3>

<ol type="a">
   <li>
      The materials on [company name]'s web site are provided "as is". [company name] makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, [company name] does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
   </li>
</ol>

<h3>
   4. Limitations
</h3>

<p>
   In no event shall [company name] or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on [company name]'s Internet site, even if [company name] or a [company name] authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
</p>
         
<h3>
   5. Revisions and Errata
</h3>

<p>
   The materials appearing on [company name]'s web site could include technical, typographical, or photographic errors. [company name] does not warrant that any of the materials on its web site are accurate, complete, or current. [company name] may make changes to the materials contained on its web site at any time without notice. [company name] does not, however, make any commitment to update the materials.
</p>

<h3>
   6. Links
</h3>

<p>
   [company name] has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by [company name] of the site. Use of any such linked web site is at the user's own risk.
</p>

<h3>
   7. Site Terms of Use Modifications
</h3>

<p>
   [company name] may revise these terms of use for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms and Conditions of Use.
</p>

<h3>
   8. Governing Law
</h3>

<p>
   Any claim relating to [company name]'s web site shall be governed by the laws of the State of [company state] without regard to its conflict of law provisions.
</p>

<p>
   General Terms and Conditions applicable to Use of a Web Site.
</p>



<h2>
   Privacy Policy
</h2>

<p>
   Your privacy is very important to us. Accordingly, we have developed this Policy in order for you to understand how we collect, use, communicate and disclose and make use of personal information. The following outlines our privacy policy.
</p>

<ul>
   <li>
      Before or at the time of collecting personal information, we will identify the purposes for which information is being collected.
   </li>
   <li>
      We will collect and use of personal information solely with the objective of fulfilling those purposes specified by us and for other compatible purposes, unless we obtain the consent of the individual concerned or as required by law.      
   </li>
   <li>
      We will only retain personal information as long as necessary for the fulfillment of those purposes.
   </li>
   <li>
      We will collect personal information by lawful and fair means and, where appropriate, with the knowledge or consent of the individual concerned.
   </li>
   <li>
      Personal data should be relevant to the purposes for which it is to be used, and, to the extent necessary for those purposes, should be accurate, complete, and up-to-date.
   </li>
   <li>
      We will protect personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
   </li>
   <li>
      We will make readily available to customers information about our policies and practices relating to the management of personal information.
   </li>
</ul>

<p>
   We are committed to conducting our business in accordance with these principles in order to ensure that the confidentiality of personal information is protected and maintained.
</p>      

         


Do not just copy/paste and save that exactly as it is. I've replaced my company name and state of jurisdiction with "[company name]" and "[company state]", respectively. You should edit these tags with the appropriate information pertaining to your website.

The Break-Down

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Now let's break this down and see what we've got there.

"By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law."

Boom! We hit on two major notes there in that one paragraph. First off, your users are consenting to be bound by "all applicable laws and regulations", so there's no loophole there they can jump through and cannot claim "ignorance". The second major note is the "copyright and trade mark law" bit. You state right off the bat the content on this site is yours, not theirs, and not Santa Claus'.

Under the heading titled "Disclaimer" (section 3, sub-section a), we find:

"The materials on [company name]'s web site are provided "as is". [company name] makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, [company name] does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site."

In other words: if you break it, oh well; we don't care. You don't get your money back and we're not reliable for it. We're also not responsible for anything that happens on partnering sites, or on sites that are linked to us officially or otherwise.

The rest of the ToS, and the Privacy Policy at the bottom, are pretty easy to understand (they're meant to be, since they exist for the user's reference and your protection).

Other Helpful Tips

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Here are a few tips to practice to also lessen your legal liabiltiy...

1. If you're running a website that may attract minors, be careful with your integration of social applications. Chat rooms and social network apps may cause trouble for you later on. Internet stalking and cuber-bullying becomes high-risk with the presence of such features.

2. Keep archived documentation and proof of purchase or proof of ownership of any works you that are displaying on your site. Just because it may be legal, doesn't mean that someone may ask for proof. If they do, you are legally obligated to provide the information. If you can't provide authentic proof, you may find yourself in a world of hurt.

3. Be careful when hiring staff members or taking volunteers. respondeat superior in Latin, literally translated, means "let the master answer". Now who would be the "master" in this case? You, the owner of the website.

4. Libel. Its more than just launching around a few negative words here and there, its a serious a legal offense. Forumotion uses the incorrect form of defamation in their poorly constructed "rules". "Slander" is actually the spoken form of defamation, used to imply any false statement (usually degrading in nature) is factual. Libel, on the other hand, is written form, and includes anything that could be considered "defaming" on a website. In most civil law jurisdictions, defamation is dealt with as a crime rather than a tort.

Jesus,did you write all that yourself?
Sorry but i am too lazy to read it If you added some images i may have been attracted to read it but plain text isnt enough for me
Alright,thats a nice bunch of information like your post and will keep these thigs in mind(even though i gave up foruming a year ago -Why?too young to be an admin)

Okay, I added a picture.

Personally, I think it's a GREAT idea to set up a register navbar link that goes to your own rules/TOS page first, and then goes to the garbage written by eToxic if the prospective member agrees to your rules/TOS.

In that way, you are protected and you have also satisfied the rules for operating a forumotion board.

(FYI: forumotion/forumactif/sosblog/etc are brand names of eToxic, the company that runs this place. I used the word "garbage" above because eToxic is using a translate program to translate the rules/TOS from its native French, and from a legal standpoint, the translated document is garbage.)