united-states contract-law international social-media agency
&quot;diamond&quot; ♦ moderators and the law of agency
<p>Are our moderators (♦) legally considered <strong>agents</strong> of Stack Exchange, Inc. from the standpoint of other non-moderator community members?</p>
<p>I've reviewed the <a href="https://meta.stackexchange.com/legal/moderator-agreement">moderator agreement</a>, and note it says:</p>
<blockquote>
<p>I acknowledge and agree that I am an independent volunteer moderator for one or more sites operated by Stack Exchange, Inc. and <em>I am not an employee, agent or representative of Stack Exchange, Inc.,</em> and I have no authority to bind Stack Exchange, Inc. in any manner and I am solely responsible for my statements and actions. I attest that my statements and posts do not represent the views, opinions or actions of Stack Exchange, Inc.</p>
</blockquote>
<p>I observe that the above is in a two-party agreement that regular users may not even be aware of.  It seems evident that the paragraph that answers the question for any claim a moderator might bring directly against the network.  But can a social media site disclaim the agency of moderators concerning other users?</p>
<p>Note that I'm assuming good faith applies here and that the moderator(s) have not knowingly violated any aspect of their agreement.  But in the hypothetical, assume a moderator's words and actions have caused harm to one or more other users. For example, let's assume the harm is a common-law tort in the US.</p>
<p>I'm vaguely aware of CDA section 230 but don't understand how that might apply here.</p>
<p>The same question might equally hold for companies like Facebook and Twitter, but I don't know because I don't even like those services.   Gosh no!</p>
<p>Note: If SE <em>wouldn't</em> assume responsibility for the well-intentioned acts of its moderators, it would seem unwise to agree to the company's terms.  But I'm not a lawyer, nor am I considering acting as a moderator.   Neither role would be well-suited to my admittedly skeptical thought processes.  I'm just asking for general education.</p>
<p>Further hypothetical:  Let's assume a moderator, in good faith, edits the contents of a question, and changes its meaning in a way that <strong>reflects badly</strong> on the original poster's intent and reputation.   Even if well-intentioned, might that action of the moderator, while still associating with new text with the OP author's name, become a defamatory act?</p>
<p>Just to take this hypothetical to an extreme, perhaps the original question asks about a &quot;Blackie Chen&quot;, who is a real person.   The moderator, who might be unfamiliar with the fact that this is Blackie's well-documented nickname goes in and edits the name to &quot;African American&quot; or worse yet &quot;African American Chen&quot;.   Assume that Blackie is neither African nor American and that the moderator is operating from an entirely different cultural context than the author or subject, perhaps South Africa.</p>
<p>The driving, non-legal problem in the hypothetical is the overapplication of political correctness. But when an online service appoints moderators who are from different countries than the author, seems to create risk. For example, the moderator might be in a country where tort law doesn't apply.</p>
<h1>Assumptions based on the hypothetical</h1>
<ul>
<li><p>New York law applies under the agreement(s)</p>
</li>
<li><p>In New York, defamation is strictly common law, not statutory.   The case law is probably out there, but it's not the primary point of the question.</p>
</li>
<li><p>In the moderator's country, an entirely different interpretation of what the law is might be apparent.   He's not a lawyer, but he keeps up with current events.  <a href="https://unimelb.libguides.com/c.php?g=929734&amp;p=6718215" rel="nofollow noreferrer">This article</a> describes the legal system from the POV of the moderator.</p>
</li>
<li><p>The moderator's system of laws has some basis in common law, so he's not totally unaware.</p>
</li>
<li><p>The South African constitution explicitly says:</p>
</li>
</ul>
<blockquote>
<ol start="10">
<li>Human dignity</li>
</ol>
<p>Everyone has inherent dignity and the right to have their dignity respected and protected.</p>
</blockquote>

<p>Stack Exchange has given moderators certain authorizations or powers, but that does not automatically make them agents. The specific provision in the agreement that they are not agents would make it harder to argue that they are in fact agents in a particular case, but if they are in fact acting as agents they might be held to be agents in some situations.</p>
<p>In order to hold SE liable, a plaintiff would need to shoe actual harm by a person <strong>acting as a moderator</strong>. Such a plaintiff would need to show further that the mod was acting in accord with the delegated authority given to mods, or in ways approved or encouraged by SE. If the action was a breach of the moderator agreement, and in no way approved or encouraged by SE, it might be hard to show that the mod was acting as an agent of SE in that instance.</p>
<p>Without specific context, such as how the mod is alleged to have harmed the plaintiff, and how SE encouraged or permitted this, or failed to take reasonable steps to prevent such harm it is hard to give a specific answer, or an assured one.</p>
<p><a href="https://www.law.cornell.edu/uscode/text/47/230" rel="nofollow noreferrer">CDA Sec 230</a> says, among other things, that the operator of a service, such as SE, will not be treated as the speaker or publisher of statements posted by users, and in general will not be liable for such statements. (That is particularly section 230 (c) (1).) But there are many details and without specifics again there is little one can say.</p>
<p>CDA section 230 (c) (2) (A) provides that a service provider (such as SE) or a service user shall not be liable for:</p>
<blockquote>
<p>any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;</p>
</blockquote>
<p>and</p>
<p>CDA section 230 (c) (2) (B) provides that a service provider (such as SE) or a service user shall not be liable for:</p>
<blockquote>
<p>any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).</p>
</blockquote>
<p>Given all this, it is hard to see how a post or an edit of a post made in good faith could be a cause of action against anyone, or how a post made in bad-faith could be a cause of action against the service provider unless they knowingly supported or encouraged it.</p>
<p>The added hypothetical says:</p>
<blockquote>
<p>Let's assume a moderator, in good faith, edits the contents of a question, and changes its meaning in a way that <strong>reflects badly</strong> on the original poster's intent and reputation. Even if well-intentioned, might that action of the moderator, while still associating with new text with the OP author's name, become a defamatory act?</p>
</blockquote>
<p>Since the complete editing history is always available, one click away from any post, and the user name of the most recent editor is always displayed right under the post, adjacent to the link to the history, it is hard to see how a reasonable person could believe that an edited post was the work of the original poster.</p>
<p>Beyond that, to constitute defamation there must be a purported statement of fact that is false, and harm to the reputation of the would-be plaintiff. Normally such a false statement must be &quot;of and concerning&quot; the plaintiff. It is hard to see how A making a statement, and B editing it, could create defamation of A. B could add defamation of some other party C, but then it could be easy to show that this was B's writing, not A's, so A would have no liability, and SE would have no liability for B's actions, as posting defamation is certainly not an approved activity.</p>
<p>Moreover, it does not require moderator status to edit someone else's answer. Any user with a certain reputation level (1,000 on Law.SE, the level varies by site) my edit any post. Currently about 160 users have this privilege on law.se, while there are only 2 moderators. On other sites the numbers will often be larger. Since editing another's post is not a moderator privilege, it is hard to see how being a moderator is relevant to doing so improperly.</p>
<p>And since CDA sec 230 (c) (2) (A) protects posters for liability for edits or deletions made in good faith, it is even harder to see any liability here.</p>
