Terms of Service Notes and Tips


(Angus McLeod) #1

The Terms of Service on your Discourse installation is something you probably haven’t looked very closely at. It’s highly unlikely they’ll matter, but there is a chance, however small.

I did an initial review of the standard Discourse Terms of Service for my own purposes recently and I have a few notes you may find useful. This is not legal advice however and if you are concerned about your Terms of Service, you should seek legal advice.

I have focused on what I consider to be the most important changes to this specific document. Keep in mind that there may be important aspects of a ToS in whatever jurisdiction(s) apply to your forum that are not contemplated by these ToS at all (for example, your jurisdiction’s equivalent of SOPPA and DCMA). Remember, this is not legal advice, as I am not a practicing lawyer in your jurisdiction and my comments are not specifically about your Discourse instance.

Most of my notes are relevant to people running their own Discourse installations, but there are some areas I think that Discourse itself should seriously consider changing, insofar as they are included by default in a standard Discourse installation, and probably shouldn’t be. I have indicated those notes with :point_right:.

Introduction

Concerning this sentence:

The following terms and conditions govern all use of the %{company_domain} website and all content, services and products available at or through the website, including, but not limited to, %{company_domain} Forum Software, %{company_domain} Support Forums and the %{company_domain} Hosting service (“Hosting”), (taken together, the Website).

I removed everything after (and including) “including, but not limited to”. My company is not providing forum software, support forums or a hosting service.

Be aware that if Discourse is only part of your website, this scoping clause is broad enough to be construed as encompassing all of your website and any separate products and services you may provide. If you provide any other products or services on the same domain as your discourse instance, you should consider changing this. Otherwise it is entirely possible that Discourse’s terms apply to everything you’re doing.

:point_right: This scoping clause should really be re-drafted for the standard Discourse distro. Using Discourse on a sub-domain is common and there is no need for the Discourse ToS to apply to all parts of a domain, as they do currently. It is also inappropriate for every company apart from Discourse itself ("…Forum Software" etc). One relatively simple change would be:

The following terms and conditions govern all use of the %{forum_domain} website and all content, services and products available at or through the website, (taken together, the Website).

Note that forum domain is not necessarily the same thing as a company domain. Discourse the company could retain the original version for its own sites.

Your Account - As is.

Responsibility of Contributors - As is.

User Content Licence - As is.

Payment and Renewal - I removed this entirely. I’m not currently taking payments related to my Discourse instance, and if / when I do I will probably want different terms.

Services - Removed. I’m not providing forum hosting services.

:point_right: The Payment and Renewal and Services clauses should really be removed from the standard Discourse ToS and just added back in for the purposes of Discourse the company. They’re only relevant to Discourse as a hosting company. They could actually cause a problem, because they represent that the forum host provides services that they don’t.

Responsibility of Website Visitors - As is.

Content Posted on Other Websites - As is.

Copyright Infringement and DMCA Policy - As is.

Intellectual Property - As is.

Advertisements - I removed this. If you do, or may want to display ads in the future, you may want to consider re-drafting this term. It is short on details and uses undefined terms like “Ad-free Upgrade” and “Services account”.

Attribution - I removed this. I am not providing forum software or forum software hosting services, so this is not relevant.

:point_right: As above, the standard Discourse distro should probably not include ‘Attribution’ as it refers to a relationship that does not exist between a standard forum host and its users. Discourse should just re-add it for meta and sites they want it on.

Changes - As is.

Termination - As is.

Disclaimer of Warranties - As is, apart from:

If you’re actually reading this, here’s a treat.

Which is cute :slight_smile: …but shouldn’t be part of a legal document.

Limitation of Liability - As is.

General Representation and Warranty - As is.

Indemnification - As is.

Miscellaneous -

:point_right: This clause has multiple problems and definitely needs re-drafting, both for Discourse’s purposes and the users of Discourse the software.

  1. It has chopped up paragraphs from multiple clauses in the original Wordpress terms (‘Jurisdiction and Applicable Law’, ‘Arbitration Agreement’ and ‘Miscellaneous’) and not put them in an appropriate order.

    As a side note, if I were Wordpress I would consider redrafting ‘Miscellaneous’, as it is a bad idea to a have a ‘grab bag’ clause in a contract. But that is not the real issue here.

    At a minimum, Discourse (both as a company and for the Discourse distro) should just remove this clause and have the three original clauses in their normal order as in the Wordpress agreement.

  2. For most people who are running their own Discourse, it makes no sense to have an agreement between them and their users being governed by Californian law and subject to either:

    • the San Francisco County court system; or

    • JAMS, which is a US-based arbitration organisation.

    Having these Californian and US-centric conflict of law clauses in the standard Discourse distro does more harm than good, unless the forum is based in California, or (possibly) the US.

    I would either leave conflict of law clauses out entirely from the standard Discourse distro (probably best), or use a more generic arbitration clause, like the standard ICC arbitration clause.

:point_right: Missing clause - Translation

The Wordpress ToS contains a few terms not in the Discourse ToS, most of which aren’t relevant to Discourse. However, the Wordpress’ clause concerning translation is relevant and should probably be included both for the sake of Discourse the company and for those hosting their own instance.

  1. Translation.

These Terms of Service were originally written in English (US). We may translate these terms into other languages. In the event of a conflict between a translated version of these Terms of Service and the English version, the English version will control.

If this term is included there would still be problems with the translations of the ToS (legal translation is a specialty discipline; words have special significance in law), but the problem would be considerably ameliorated.


Providing data for GDPR
(Jeff Atwood) #2

@kemitchell may have more to say about this on our behalf soon :wink:


Términos de Servicio (tos_topic.body) :es:
(Kyle E. Mitchell) #3

Thanks, @codinghorror.

@angus, thanks so much for your thoughtful post and diligent analysis. In my time helping companies and communities with terms of service, I don’t know that I’ve ever seen a message quite like this one!

I’ve recently stepped in to help CDCK with a few legal needs, and revisiting the terms of service, privacy policy, and other public notices for Discourse forums is right up toward the top. There are a few more pressing needs, but I plan to dive into the public-terms project soon. When I do, I’ll make sure to review your post again, and follow up here.


(Christoph) #4

Not that this is something to argue about, but: why? What are the downsides?


(Angus McLeod) #5

Because it detracts from the seriousness and substance of the clause it appears in.

You have to remember that lawyers take themselves very seriously.

My first job out of law school was working as a clerk for a senior judge on a big important litigation. I can just imagine how my judge would have reacted if there was this sentence in a contract that was part of that case. Particularly if any of the parties were actually relying on the clause in question.

Just picture it. There’s an old fashioned wood-panelled court room. The seats are filled with lawyers in suits. At the front there’s a bar table with barristers wearing robes and wigs. Three judges walk in (also in robes and wigs) and the whole room stands up, only returning to their seats when the judges take theirs.

The senior counsel for the appellants, Mr Havelock QC, stands up and says

Your honours, we direct the Court’s attention to clause 13, the Disclaimer of Warranties, upon which our case is based.

The Hon. Justice Regius Rumpold interjects

Would Counsel care to explain the role of the 4th sentence of the Disclaimer and how the court should interpret the clause in light of it?

Mr Havelock QC (slightly blushing)

Well your honours, it appears the drafter of this clause had a sense of humour…

(the solicitors sitting behind the barristers on the opposite side of the court smirk).

The Hon. Justice Regius Rumpold interjects again

So this clause, drafted by a comedian, is the main basis of your client’s appeal?

Mr Havelock QC

… ahhh yes your honours. If it please the court…


(Christoph) #6

Hm, while I can indeed imagine that situation (thanks for spelling it out in its interactional details, which I think is very important and often neglected), I am not quite convinced yet that having a humorous sentence in your ToS is a bad thing, even in that court room situation you describe. Because the question is, how the interaction continues. One thing I admire about the law professiona is how much weight arguments have and lawyers can systematically determine what matters in a particular case and what doesn’t and why.

So in this case, I would actually expect Mr Havelock to respond not only that the sentence is a humerous interjection but also to suggest that it is entirely irrelevant to the case at hand and can be safely ignored and that judge Rumpold would have to agree (just like a clause that has bren ruled unconstitutional in a previous case would be ignored in this case) and the rest of the trial would proceed as if the sentence wasn’t there, no?

Which also means they won’t be judges for much longer…


(Angus McLeod) #7

Maybe :slight_smile:

Or maybe not.

Why take the risk?


#8

I would argue, that having humorous injections in a legal document could suggest that the document wasn’t meant to be taken seriously, i.e. not intended as legally binding. It would be an equivalent to saying something with a wink.
Also, who is supposed to decide which part of the agreement is a joke?

This is just in my layman’s opinion.


(Christoph) #9

Any updates regarding this?


#10

We got busy with the four letter word. I can’t wait until next week when the world doesn’t end.


(Yaw Anokwa) #11

Any updates on the ToS, @kemitchell?


(Kyle E. Mitchell) #12

@yanokwa, we’ll be sure to make an announcement here on meta when we have something.