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May I suggest....

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Wilma
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Posted: Tue 30 Aug , 2005 10:05 am
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I like that idea too. Also, if moving all of B77 to another Url, with a co.uk extension would solve problems then it's all good in my book. :)

Uh Fixer, the age of consent in different countries is actually a bit different. In Canada it is generally 14. Knowing that a young person can participate in sexual activity yet can't read/learn about it until they are 18, kind of scares me.

(Note: Where I grew up the teen pregnancy was very high.)

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Rowanberry
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Posted: Tue 30 Aug , 2005 12:26 pm
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A good suggestion, Estel, about dropping the discussion until we get legal advice, because the legal aspect is what it's all about. And, if the best solution turns out to be to move to a server based in some less puritanic country, it's OK with me.

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Fixer
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Posted: Tue 30 Aug , 2005 1:03 pm
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Does this mean we stop beating the dead horse?

:doh1:

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Voronwë_the_Faithful
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Posted: Tue 30 Aug , 2005 1:54 pm
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You know, I keep seeing people saying that we haven't gotten any legal advice about this subject. That is not true. I have repeatedly said that allowing under 18 year olds in ToE is a potential liability issue. That is my firm legal opinion; if someone were to consult with me in my practice with this question that is what I would tell them. I don't believe that a more exact answer then that is possible at this time, and I would be wary of any attorney that said otherwise. It saddens me that my own friends don't trust that I know what I am talking about. :(

That having been said, I certainly have no objection to Lidless talking to another attorney. My only request is that if she expresses the opinion that there is no potential liability issue, that I have an opportunity to review the information upon which she relies in making that determination.


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Fixer
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Posted: Tue 30 Aug , 2005 2:02 pm
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Voronwë_the_Faithful wrote:
You know, I keep seeing people saying that we haven't gotten any legal advice about this subject. That is not true. I have repeatedly said that allowing under 18 year olds in ToE is a potential liability issue. That is my firm legal opinion; if someone were to consult with me in my practice with this question that is what I would tell them. I don't believe that a more exact answer then that is possible at this time, and I would be wary of any attorney that said otherwise. It saddens me that my own friends don't trust that I know what I am talking about. :(
Awwww..... I didn't know you were an attourney.

*hugs the laywer*

....

I never in my life thought I'd type that. :Q

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Axordil
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Posted: Tue 30 Aug , 2005 2:55 pm
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Given the complexities of the situation, Voronwe, I think it would be a good idea to review whatever we get. I forgot your original opinion and then missed it in reviewing the discussion. :(

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ToshoftheWuffingas
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Posted: Tue 30 Aug , 2005 6:13 pm
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American under 18 year olds perhaps but what about British or Irish or Portuguese or Canadian or German under 18 year olds? Is it really a legal problem that someone is allowed to marry and have children in their home countries but cannot talk about the process on an international message board? Does American registration make foreign nationals subject to restrictions on freedom of speech that wouldn't be imposed in their own country?

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Primula_Baggins
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Posted: Tue 30 Aug , 2005 6:54 pm
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What determines the law is the physical location of the server where the messageboard is stored, Tosh. Our server is in the United States, so the board is subject to U.S. law.

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Estel
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Posted: Tue 30 Aug , 2005 7:03 pm
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Voronwe - the point wasn't to ignore your advice. It was to have someone completely unbiased read the entire contents of the ToE (which you have said you have not done) and give advice based on that. Also to have a lawyer who is an expert on internet law when it comes to this subject.

Forgive me for saying, but you seem very stuck on your opinion in this, and for not having read the forum, it seems... well, it seems like you are biased, any advice you give will inevitably reflect your own point of view, rather than actually finding out if anything in the forum requires an age restriction.

If I am in the wrong on this, my deepest apologies. I do trust your advice, however, it would make me, and others feel better, if we got the advice of someone who doesn't have a personal stake in this matter.



Apologies in advance for spelling errors :oops: My brain is not all here today.


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Lidless
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Posted: Tue 30 Aug , 2005 10:24 pm
Als u het leven te ernstig neemt, mist u de betekenis.
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Primula_Baggins wrote:
What determines the law is the physical location of the server where the messageboard is stored, Tosh. Our server is in the United States, so the board is subject to U.S. law.
At the moment. In order to cover my own ass in the meantime, I'm looking to move the server.

V-man, I realise you are an expert in US law, but there are global options available. Having a US server and a US owner is just asking for legal trouble, and we don't need that trouble.

Now the server issue can be easily changed but tell me, apart from the fact you are willing to set up the company for free ( :cheers: ) in California, would it not make sense to have it in another country other than the US, offshore or not?

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IdylleSeethes
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Posted: Thu 01 Sep , 2005 12:55 am
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Estel,

Thanks for moving the discussion here, and thank you Lidless for seeking verification of the legalities.

However this is resolved, I understand that the poster formerly known as TLE has the best of motives and I hope that no one misunderstands this. I happen to believe that the lack of help when it is needed for these issues creates many problems in our society. I just can't afford to be on the bleeding edge.

There are several reasons why I cannot participate in ToE with posters under 18. Some of them probably don't apply to anyone else, and some might.

A large part of my career is connected with children and through it I know several dozen attorneys who spend 100% of their professional time on issues related to children. I have asked several of them for informal opinions about this issue and they unanimously agree it is a mistake for me to participate.

Since I am a poster in ToE, I am very aware of what is in it and some of you know that I'm not shy about discussing sexual issues. I agree that what is said in ToE is very mild. It isn't an issue of what is said but that it is about sex and of who is in the discussion.

Moving the board doesn't solve the problem for me. It is a matter of the age limit in the US and of the perception of ethical ambiguity that participation would create.

Because of the kind of work I do, my background gets investigated fairly often. There are currently 2 ongoing investigations, one for a new project my wife is taking on and one for a project of mine. It only takes the perception of a problem to disturb my life. It has only been in the last few years that what happens between consenting adults has not been a problem for us.

So, a second legal opinion may or may not provide you some leeway, but it does nothing for me.


fixer,

Voronwe has provide his opinion, as you now know. We also had an opinion from Samaranth who practices law in an area related to our problem.

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Voronwë_the_Faithful
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Posted: Thu 01 Sep , 2005 5:54 am
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Lidless wrote:
Now the server issue can be easily changed but tell me, apart from the fact you are willing to set up the company for free ( :cheers: ) in California, would it not make sense to have it in another country other than the US, offshore or not?
Lidless, if I am understanding your question, the answer is yes. An non-American person or entity would certainly be much less likely to be subject to civil liability or criminal sanction under U.S. law. :) I am increasingly coming to the conclusion that the idea that I suggested may not be the best ownership plan. I would certainly not be offended or upset if we ended up going in a different direction.

I do want to make it clear that though I said that I don't read or post in ToE (and currently I don't even have permission to do so) I did read through a fairly substantial cross-section of threads before expressing an opinion in the original discussion that led to the over 18 rule. I mention this just to clarify that I was not expressing an opinion without knowing the types of things that are generally discussed at ToE. Idylle put it very well when he said:
Quote:
I agree that what is said in ToE is very mild. It isn't an issue of what is said but that it is about sex and of who is in the discussion.


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ToshoftheWuffingas
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Posted: Thu 01 Sep , 2005 9:47 am
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Forgive me if I am proved wrong; I hope I am, but are we at a point where we cannot reconcile the interests of those that Lidless wants to protect (and I sympathise and support his view) and the interests of people like Idylle (and I sympathise and appreciate his problem)?

Doesn't this subject get needlessly screwed up? Why is it so hard to separate criminal or exploitative behaviour from honest expression?
*end of fruitless rant*

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Jnyusa
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Posted: Thu 01 Sep , 2005 4:22 pm
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Last weekend I googled around and found the legislation that has been passed or is pending regarding minors on the internet and adult topics on the internet.

There are about four laws that have been passed and might affect us... and a bunch of other laws pending. I didn't have time to post this before leaving town, but I can provide links to a website where you can read the actual Bills and their congressional status, plus some commentary on this issue from at least one other website devoted to online dating for adults.

I don't have the background to interpret this stuff, but would you be interested in having the links and reading the material?

Jn

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Estel
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Posted: Thu 01 Sep , 2005 4:32 pm
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I would Jn, thanks :)


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Voronwë_the_Faithful
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Posted: Thu 01 Sep , 2005 7:02 pm
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Jnyusa wrote:
Last weekend I googled around and found the legislation that has been passed or is pending regarding minors on the internet and adult topics on the internet.

There are about four laws that have been passed and might affect us... and a bunch of other laws pending. I didn't have time to post this before leaving town, but I can provide links to a website where you can read the actual Bills and their congressional status, plus some commentary on this issue from at least one other website devoted to online dating for adults.

I don't have the background to interpret this stuff, but would you be interested in having the links and reading the material?

Jn
Just to make things clear, laws passed by Congress would only be one part of the equation, and a very small part at that. Each state would also have its own statutes on this subject that could be potentially relevant. And then each state would have its own set of potentially relevant court decisions (judicial authority makes up the vast majority of "the law").

Let's say a 17 year old had an issue about a sexual problem that they wanted advice about. Then their parents learn that they have asked for, received and acted on that advice, and take exception to it, for whatever reason. Those parents would very likely be able to assert a credible negligence action against the owner of the site for knowingly allowing minors to read and post in a sex forum. In addition to any potential criminal penalties that may be applicable.


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Axordil
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Posted: Thu 01 Sep , 2005 7:16 pm
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Yet sites such as www.sfsi.org do exactly that, with minors, all the time. What liability shield do they have?

edit to add: although they don't have discussion on the site proper...they send out emails or refer people to their phone lines. Hmmm.

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Voronwë_the_Faithful
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Posted: Thu 01 Sep , 2005 8:44 pm
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Ax, you've partly answered your own question. But more to the point, a site such as that would claim that the advice was being given by trained volunteers, which makes it a significantly different situation then here, obviously.

Please note that I am not making a value judgment that advice from such trained volunteers would be better then advice from ones cyber-friends, but there would definitely be a higher level of liability for that type of things here then there.


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Jnyusa
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Posted: Sun 04 Sep , 2005 4:07 am
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People, I'll have to ask your patience about the links I promised. My computer is going haywire and I've really got to buy a new one now. Dont' know if I'll be able to post for the next several days.

Jn

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samaranth
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Posted: Mon 05 Sep , 2005 1:37 am
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Jnyusa, sorry to hear about your computer problems. I’d be very interested to see the sites you have found, when you have a chance to post the links.

I’m not a practising lawyer, IS – it’s probably more accurate to say that I work with law enforcement in the administration of the relevant laws in Australia.

This includes the classification of material on the Net (as well as in other media), by the way. I would offer to give an assessment, however, (1) I’m probably just as ‘tainted’ as Voronwe, (2) the rules I apply are particular to the Australian regulatory context and wouldn’t necessarily apply to overseas jurisdictions, and (3) (given that the majority of the work I do relates to child protection matters,) I have chosen not to ask for access to ToE for similar reasons to Idylle. Not very helpful, I know, but, even so, I thought I should chip in here because I thought the question of access to ToE had been pretty much debated to death when Article 6 went up for ratification, so I presume there has been more recent discussion that I’ve been oblivious of. Which wouldn’t be hard because, you know, I’m mostly in that state…

As far as I understand it, the issue is whether the nature of the content on the ToE forum actually warrants exclusion of those members under the age of 18 years.

Estel has also expressed concern that without access (some) people are forming the view that the content in ToE is more detailed than it actually is, and thus are forming ‘strong opinions about what restrictions there should and shouldn’t be’. I can’t comment on that, only that I had understood the ToE discussion to be ‘frank’ and ‘open’ rather than prurient or obscene (however defined.) It’s quite possible that the measures already put in place on B77 (the notice on the front page, and the provisions of Article 6 of the charter) are more than are necessary, strictly speaking . However, this seems to be all a question of reducing risk: First, risk to younger B77ers, and second, risk of legal action being taken against the site owner, ie Lidless, (I presume).

For peace of mind it probably would be a good idea to obtain an independent assessment of the content of ToE, but I’d stress that you need to be very clear about which bar you are measuring it against. And the evolving nature of this site and ToE should also be taken into account. It is impossible to give an unconditional guarantee that no legal action would ever be taken.

Most jurisdictions require that access to ‘adult’ material (this term broadly used to include explicit discussion or descriptions of sexual matters; the unifying principle being that it is ‘unsuitable for children’ and may cause ‘harm’) is limited to those over the age of 18.

In most jurisdictions 18 is also the age of majority. It should be noted that ‘age of consent’ and ‘age of majority’ do not necessarily line up. A number of posters have mentioned the disparity between these two things, including the fact that 14 year olds (in some countries) can have sex, but there may be laws restricting their access to books/films/Internet material. . Yep, there’s certainly a paradox there.

Web site operators can reduce their liability (either voluntarily or because they are required to by law) through (amongst other things) use of disclaimers, certification (‘are you over 18? Click Yes to continue’) or by requiring registration for membership and nominating an appropriate birthdate.

In general terms, the legal obligations which rest on a web site operator are those of the country in which the site is hosted. The B77 board is currently hosted on a phpbber server, located in the US. However, I understand that it’s proposed that the site move from this environment to a separate hosting environment at some point in the future. This may or may not be located in the US.

I should note that laws restricting access by minors to high end material also exist in other jurisdictions, including the UK. While the Internet itself is not ‘regulated’ per se in the UK, I’ve read that consideration is being given to applying offline laws to the online environment.

I’d also like point out that the term ‘pornography’ has a thousand different interpretations around the world. Not all explicit sexual discussion is pornography, not all erotica is pornography. Not all pornography is good or bad. Most court decisions/law/regulations are not necessarily framed in terms of ‘pornography’: they tend to focus on concepts of ‘offensiveness’, ‘obscenity’ and ‘indecency’. (I’m wildly generalizing here, in an effort to accommodate the way different countries approach the issue of restricting minors’ access to such material, if they don’t actually make it out and out illegal.) I am unable to confirm whether not the content of ToE reaches these levels, although my strong impression is that it does not.

The fact that some sites provide easy access to material with explicit sexual content doesn’t mean there are no rules against it. It just means they’re getting away with it. It may be that they’re hosted in a jurisdiction where it doesn’t matter. It may be that they consider the risk of any action being taken against them is low. That is their call.

I would be interested to hear where the posters in ToE think the age should be set. If it’s not 18, then 17? 16? Younger? It may be easier to retain the current limitations, or consider set them at a lower age, to satisfy the site’s duty of care to its members, if you consider that one is implied.


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