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The law and online Communities of Practice

One of the uncommon characteristics of Macuarium (my little consulting company and the mothership of a few sites and forums) is that it incorporates a legal department right from its inception. Sure, the reason is that the other partner is a lawyer with an interest in the Internet… but also, that I’ve always believed in knowing the lay of the land and carrying a big stick.

And today I’m especially happy, as it seems we’re about to win another one of the real-life tight situations in which our bright legal department has proven, once and again, its mettle. The full version -it’s a long yarn- will be written in Spanish after the dust has settled, but the take-away may be relevant for other readers.

In most countries, there is a growing bevy of laws concerning online CoPs. Serious projects would do well to keep an eye on:

Intellectual property rights. Who owns what and which rights are awarded/kept/returned during the «member lifetime». In other words, what rights does the CoP have over the contents that members create, what rights have members themselves; what happens when someone ceases to be a member, etcetera. Can you edit their texts? Can they demand that you erase all messages, once they’re no longer members? In all likelyhood there’s legislation about this in your country too, and your user terms should take the issue (and the laws) into account.

Privacy rights. Especially in Europe, there’s a rather solid protection of people’s private information… but there’s still very little precedent and quite a lot of confusion about what is personal information, what isn’t, and how to exercise a person’s rights. This should be taken into account from the design phase: you may need to register the user databases with a government agency, to establish access procedures for users, and to create appropriate security conditions for the data… not to mention gathering and handling it with extreme care. Failing to do all that can get you into really hot water.

Online service legislation. Almost every country has its own version, and online service providers are subject to quite similar obligations everywhere regarding their responsibility in online behaviour of their users, and the way they can provide their service. This limits (or opens) what you can do to a misbehaving user, and what you can ask others to do, as well as setting out your obligations toward judicial or police investigations.

Honour and free press legislation. Each country has a different balance between the rights of free expression and those that protect the honour of third parties. When people write with abandon, they very often tread on the toes of others, sometimes beyond their legal right. Then that becomes the responsibility of the CoP organisers, who can get hit or even sued. Terms of use and moderators have better keep that in mind.

And I’m not even going into copyright law or protection of trade secrets :-). The jungle is quite dense that way… we’ve been there, we know (we even got friendly with Apple’s famous lawyers, and learnt a lot about Argentine IP). Enforcing your users’ appropriate behaviour and enforcing your own rights can be a bit of a chore, but it’s far easier on well-built foundations.

Also, it’s important to remember that online CoPs are subject not just to the laws of the country origin, but also to those of the country where its servers are hosted (i.e. if you’re Spanish but hosted on the US, a US suit can get you off the air). Other countries’ legislations might not hold sway but still affect you or your relationships with third parties.

All in all, it pays to be aware of all those laws, agencies, procedures and precedents. It does a lot for your peace of mind, and can save you from more serious losses too. The fun thing is, most CoPs out there seem to live blithely ignoring most of them… until they crash into a mean ex-user or an outraged third party.

And, take it from me, they do exist. It’s just a matter of time.


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