Forum Owners: Should You Hire A Lawyer?

Table of Contents
I. Background

Why did JulieVa write this anyway?

II. Being Right & Being Sued
Yes, you are naked underneath your clothes.

III. Consider This...
If you thought Geometry was bad, look at all these angles...

IV. Lawyer anyone?
The naughty & the nice

V. Bonus Tips
2 Simple ways that you can make things easier for yourself...


I. Background
Recently, I posted a thread requesting guidance from Big Boards owners or anyone "in the know" regarding whether or not a forum owner needs a lawyer and also asking for some guidance about how to go about picking a lawyer...what to look for, the types of questions to ask, any warnings signs, etc.

I did this because my site is at a critical growth point right now. My site has been operating or almost 5 years and the revenue stream and traffic is picking up. I am also interacting with more savvy users - physicians, divorce / family attorneys, Life Coaches & Parenting Coaches, mental health professionals, etc.

I was hoping for some guidance from other forum owners who have already been through this...but to be honest, I got very few helpful responses in with my inquiry (and I was referred to as a horse! LOL), so I proactively sought answers to my questions elsewhere... and, I decided to post something about this subject for anyone else who may be struggling with a similar decision.

Important Note: I am not an attorney. What I am posting here is not legal advice. It's just a bit of information-sharing based on what I discovered by doing a few hours of research which included a few free telephone consultations with attorneys. This is something you can certainly look into for yourself. Many attorneys and law firms offer free initial consultations and may are willing to refer you to someone else if their area of law practice is not what you need.

I am hoping that this article gives you some things to consider that you may have not thought about.

As you read, please keep in mind that I am in the USA, so some of the things I share may not be relevant to you if you live outside of the USA. :)

II. Being Right & Being Sued
As a forum owners we do have liability at varying levels. It's all still a bit controversial & some things depend on where you live - so some things can be more than a little confusing. Many of us have had to ban someone who then became angry and threatened to sue...or maybe two members got into a disagreement and threatened to sue each other. The first time it happens, we may get frightened or annoyed, but after the third or fourth time we may *yawn* The general consensus seems to be that such people have no legal leg to stand on, we should cease all communication with them, and let them stay banned...still, we can't ignore the idea that some people like to file lawsuits.

You don't have to have a valid lawsuit to sue someone. You just have to go the courthouse and file the paperwork. The validity of the lawsuit may not be worked out until everyone involved (even the innocent person) has spent considerable emotional energy, time, and money. In other words, being right doesn't protect you from being sued.

III. Consider This...
Revenue Streams, Contests, and Giveaways
Do you have money coming in? You may offer paid advertising or you maybe have other revenue streams such as membership dues or donations. Maybe you form loose partnerships on projects with others in your niche, maybe you host contests and / or giveaways... All of this exposes you to more legal liability.

Example: This year I did a giveaway with a GPS system for special needs kids. What if the winner's child was wearing the device which was meant to protect a special needs child from getting lost or harmed and STILL got lost or harmed? What if the parent wants to sue the company who made the device AND sue my site for sending it to the family as a prize?

Yes...This is something to think about.

Copyright / Fair Use Issues
Do you allow people to copy news articles into your site for discussion? Do you allow people to post images or videos?

About two years ago there was a law firm that was said to specialize in suing unsuspecting forum owners for Copyright infringement.

Think about how you will protect yourself from this scenario.

To protect myself, registered my site with the Copyright office. Taking that action protects me because a person with a complaint will be required to contact me to ask that their copyrighted material be removed from my site. Even if they go straight to a lawyer, the lawyer will be legally required to check the listing above and he/she will be required by law to contact me and give me an opportunity to remove the material. I can't have "surprise" lawsuits because of this and - yes, it gives me peace of mind knowing that. You'll have to decide what's right for you.

I actually had a blogger contact MY WEBHOST in writing twice to remove ONE PARAGRAPH which someone had posted for discussion. The OP included a link to her site and complied with Fair Use. It actually generated traffic for her site, but she was really into making sure that not one of her sentences left her website. I actually spoke to her on the telephone - she definitely had an interesting mindset about it. She did not see it from the perspective that the discussion was actually generating more views for her work. Again this person contacted my WEBHOST directly. She did not use a lawyer or contact me through the Copyright Office. This could have resulted in my site being taken down if I was not paying attention. So while you may take several legal steps to protect yourself, you still have to be careful, and aware, and be prepared for people who do not seem to behave rationally...Not everyone thinks alike ((shoulder shrug))

User Privacy / Invasion of Privacy / Libel
During one consultation a lawyer explained that the most common types of web lawsuits come from 3 lanes: 1. public disclosure of private facts (...the way this relates to a forum is usually that some people in forums "go after" other members by posting personal information about them - their real name, address, place of employment, etc. to embarrass them or otherwise cause harm - Obviously this is a problem.), 2. libel (click that link if you don't know what that is!), and 3. the commercial use of another person or company's images without their permission (Copyright infringement.)

Forum owners may not be held liable for statements of third parties (per Section 230 of the Communications Decency Act) but you may still want to make sure your terms and conditions say that this type of activity is not allowed.

There are other considerations beyond these which will depend on your niche and the type of activity you permit on your site. You may want to google, "Is my website legal" for more information.

Do you Moderate Your Forum?
Most of us moderate our forum.

One thing I found out is that the more you "moderate" your forum, the less protection you may have under the Communications Decency Act Section 230. which says that forum owners are said to be "distributors" of content authored by others. Two lawyers explained to me that although it seems counter intuitive - the more you take active measures to keep your forum "clean" by editing posts, etc the less Section 230 may protect you.

If you do a little searching on google, you'll see that the courts are currently siding with forum owners on this - even when the person who is suing the forum owner tries to say "moderation" translates into forum owners being liable. That's great and hopefully it doesn't change.

IV. Lawyer Anyone?
Warning: There are attorneys who will try to literally scare you into paying them THOUSANDS of dollars. They will absolutely not tell you about alternatives which may save you time and money or admit that they are not the best choice to handle your issues and questions. For me, they were pretty easy to spot after a few calls - especially when I finally got to speak with attorneys who did do that for me...but you'll have to learn to discern the difference for yourself.

When thinking about hiring any professional to perform an important service for you - you may want to consider how responsive they are (how easy is it to contact them & do they return your calls or emails promptly), whether they offer suggestions to you to make things easier for you in terms of money, time, and / or effort, and your gut feeling about them. Do you feel comfortable talking with them or were they condescending and / or avoidant? (I actually had a consultation like that LOL! A lawyer said something and when I asked for a little more clarity, she actually refused to answer.) This all applies to lawyers too. You have to pick someone who fits.

One thing that I found frustrating is that it's hard to get specific references for lawyers (like you would for an electrician or a childcare provider) because client info has to be kept in confidence. Another interesting thing is that some of the lawyers were a bit sketchy when it came to giving an estimate of the cost.

V. Bonus Tips:
Time is money. For attorneys - doubly so. Have your situation summarized for presentation to potential attorneys. The next bonus tip will help you do that.

Educate yourself. Do a little legal research of your own as it pertains to your situation and circumstances so that you'll at least know the language and the basic principles. This can help you weed out attorneys who do not practice in the areas of law that you need, but wont admit it. This will also help you decide how you want to handle your issue - what you need the attorney for versus what you can handle yourself. This will save you time and money because it will make it easier for the attorney to work with you, and it will also make you feel more secure with what's happening.

An example of how I am saving money because I did a bit of homework and formulated how I want to tackle what I need to get done (as described in the bonus tips above): My plan is to LLC my site. I have several programs & streams of revenue. The level of interactions I am getting involved in are becoming more and more professional and they will require more formality and I will need more protection for me and my family. I would hate to think that my hobby ever resulted in my family being harmed financially. So - yes, it's time.

One way that I am saving money is to file the LLC paperwork myself. At first I was intimidated to do this and I considered going with an online site that will do it for me; however, the online sites seem to charge for things that are FREE. (Example - one online site charges $49 to get an EIN. Well...getting an EIN is 100% FREE on the IRS website.)

By doing a little research I discovered that I live in a USA State which practically hand-holds small business owners through the process of filing the paperwork. (Joy!) What I need the lawyer for in the LLC process is the Operating Agreement. The Operating Agreement is a very important part of the LLC package because that's where an LLC owner's protection lies. This document is where you establish the "separateness" between you as a private person and your company. This is where you protect your family's assets from liability which results from anything having to do with your company. I also purchased an LLC Guide for $14 as a reference, but my state is really great with their online references & telephone assistance too. Even that book and the state site recommends seeking legal guidance for the Operating Agreement. I was told by several of the lawyers and it also says in the book that the Operating Agreement is especially important for a single owner LLC (which I will be) because if I am ever taken to court, my operating agreement will ensure that my protection (the limited liability) remains intact.

At this point I think I have one person who I am seriously considering. I am going to keep looking this week and make a decision by the end of the week. I am also getting the lawyer to do a scrub of my Registration Agreement & Privacy Policy (Terms of Use). This will cost a little bit of money but it's worth it and it has to be done. Eventually, I will get a lawyer to scrub my ad program disclaimers & my Guest Writer Program disclaimers too

So the order is:
1) Form LLC (Get legal assistance with the Operating Agreement)
2) Terms of Service (Registration Agreement & Privacy Policy) Scrub & Update (with legal assistance)
3) Ad Programs & Guest Writer Programs Disclaimers (to be worked on with legal assistance)

In this way I'll be able to build up protections for myself and the site in phases and in a way which address the most vulnerable areas first and in a way that is easier to handle in terms of the $. I can pay for legal assistance as revenue comes into the site and I don't have to dip into my family's money.

I hope this post is helpful to someone. :)

If you are struggling with this issue yourself & you want more specific info, please ask here or in PM and I will try to help you.

Good luck everyone!