While the Age Limitation Clause described in the last post is the most important of these type of clauses … or at least the most complex … there are other ways to reduce liability and improve site moderation by limiting who can use a service or site. The two terms discussed below are remarkably simple however, they are a “Sanctioned User Clause” and directly below it a “Banned User Clause”. Both clauses limit access by distinct types of users that you absolutely want to prevent from using your site:
“To use the Website you must be legally allowed to. If you are prohibited from accessing any aspect of our Website under the laws of your country or your name is on an applicable denied party list you may not use our Website.
To use the Website you must not have previously had an account on [NAME OF WEBSITE] removed for the violation of any law or for the violation of our policies.”
It’s helpful for a site to forbid both sanctioned and banned users because both groups create risk for the site owner in different ways.
Sanctioned users are people who are forbidden by law from using your site. This is largely made up of individuals and organizations on various terrorism watch lists or those who are banned from using social media as a condition of a criminal sentence. However ethical such lists and sentences are, hosting content from or allowing access to your site by individuals under legal prohibition risks official sanction. When and how governments can limit internet access is an evolving area of law. In the United States at least some protection for innocent site owners exists in such decisions as 2017’s Packingham v. North Carolina where the US Supreme Court found a blanket social media ban for past sex offenders unconstitutional, or the more recent Twitter v. Taamneh (2023) where the US Supreme Court rejected a lawsuit claiming Twitter had aided in a terrorist attack by hosting ISIL content.
However, the because the law of online sanctions it is still in flux it lacks firm legal guardrails and guidance and questions regarding your site’s duty to help limit access by sanctioned users are something to avoid. The risk of official action on sanctioned users, or perhaps the risk of bad behavior, by such users is sufficient for many large social media platforms to forbid entire categories of users (such as convicted sex offenders) from using their services even without specific laws. The Sample Terms do not go this far, but such additions may be worth considering depending on the type of content and audience one wishes to host.
What matters for a site operator is that these exclusionary terms provide a simple reason to ban users if a government ever threatens action, signal a willingness to comply with such laws, and allow the site to distance itself from sanctioned users. The next clause is similar, it also excludes certain users in an effort to increase the safety of the site userbase and ease the work of your moderators. This term, the “Banned User Clause” provides a simple justification to ban the new accounts or additional accounts of banned users and it makes clear that the site takes its moderation decisions seriously.
This sort of clause is necessary because the majority of users who end up banned from online communities or social media sites are seeking to intentionally violate the site’s rules for financial, ideological, and/or psychological reasons that are not responsive to discussion, “due process”, or rational argument. Many act in a disruptive manner because they wish to harm the site’s operators, moderators, and community. Such users are also willing to act in extremely anti-social ways to do so, and this includes frivolous litigation. They also tend to be fairly few in number, but persistent, so clear standards that provide a strong basis for continuing to exclude them once banned are helpful. Under this term your moderators have a reason to ban users who have previously been a problem without waiting for new trolling, harassment, or crimes on their part.
It’s worth noting that neither of these terms require the website to actively police their users for membership in prohibited organizations or anything else. Instead, they provide a basis for action when issues appear or the site receives notice from others, including its users. As with all discussion of banning and moderation, there are a variety of ethical views, but the Sample Terms of Service opts to favor user safety, site functionality, and risk management over claims of speech rights. This is not simply a practical decision, but one that is the result of having worked in the anti-harassment space for several years—claims of rights violations related to one’s ability to post on social media are almost always frivolous and self-serving. Website operators are not courts, have no police power, and lack the resources to act as if they do. The only ability that a site operator has to discourage bad behavior is the threat of banning users who violate the terms of service, and it is best to approach this as acting out of self-preservation rather than as the ability to punish wrongdoing.
NON-DELEGATION CLAUSE
The final term in the User Limitations section is a user directed caution that acts to cut off any argument that the site’s Terms of Service supersede or replace any other laws or contracts that the user is required to follow:
“To use this website you must not be in violation of any laws specific to your country or state. Depending on your country of residence you may also be subject to local laws and regulations that are not covered by these Terms.
If you are accessing the Website through or with another site or application, it may also have its own terms of use that you will also have to follow.
It is your responsibility to follow these Terms, your local laws, and any other agreements while using the Website. Our Terms of Service here do not supersede or replace your responsibility to follow other terms of service, your local laws, and any other agreements you have made while using the Website.“
This term doesn’t read like a traditional “Non-Delegation Clause” which prevents a party from transferring its duties or rights under a contract to others, but it serves the same purpose, preventing the user from claiming that they transferred their legal or contractual duties to the site by obeying the site’s Terms of Service. The clause isn’t here simply to avoid liability for the site though, but to remind the users that regardless of these Terms they still need to follow other rules, and have made other obligations. For Fediverse users this is of particular note, given the number of third party applications or browsers that are available for phone use and which also have their own Terms of Service (not to mention phone Terms of Service).
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