In re NSFW Discord Channels 2020 SDSC 16

In re NSFW Discord Channels 2020 SDSC 16

Date of judgment	12th October 2020
Justices	Chief Justice Danyo Justice Ivy Cactus Justice SeaOtter
Held	The government has a duty to remove self-declared minors from NSFW channels.
Ruling	3-0
Applicable precedent	Reaffirms supremacy of Terms of Service under In re Restraining Order Act 2019 SDSC 1 16, 6 Real life law is justiciable (reviewable) in courts, 11 The government has a duty to ban under 13s from the server, 16 The government has a duty to remove self-declared minors from NSFW channels, 19 For the purposes of ToS and IRL duties, any person with the relevant permissions is duty bound to carry them, 21 The government has a duty to ensure that minors and people who do not wish to view NSFW content are not moderating NSFW channels, 24 The government has a duty to ensure there is sufficient law enforcement in NSFW channels, 26

MAJORITY OPINION by Chief Justice Danyo

(with Justices Ivy Cactus and SeaOtter agreeing)

Introduction

[1]. The petitioner is seeking judicial review on the current running of not safe for work (“NSFW”) Discord channels on the grounds that the government is not preventing self-described minors from accessing NSFW content. The petitioner alleges that the government is acting in breach of real life (“IRL”) law.

Summary of the petition

[2]. The petitioner makes a novel claim under IRL law. They claim that IRL law imposes a duty on the government to remove self-described minors from NSFW channels, irrespective of whether that person has self-certified with Discord that they are above the age of 18\. They allege that ignoring such claims “runs the risk of allowing the distribution of sexual content to minors”.

[3]. The petitioner has emphasised the constitutional right of data protection (Article 16\) and does not argue that the government should institute manual checks on every person in NSFW channels. They argue that the government’s duty only applies when someone states their age publicly and voluntarily.

Summary of the response

[4]. The respondent argues that the United States, Reddit, and Discord do not enforce IRL laws regarding NSFW content. Therefore, they argue that the government of SimDemocracy does not have such a duty either.

Issue 1: Is real life law justiciable in court?

[5]. Before we can review the petitioner’s claim that the government has a duty under IRL law, we must first establish whether IRL law is justiciable in court. In other words, can this court review claims under IRL law?

[6]. In In re Restraining Order Act 2019 SDSC 1 16, this court in a 3-0 ruling affirmed that the Terms of Service (“ToS”) was a higher law, above even the Constitution. As this was an obiter dictum (an incidental remark) of the judgment, as opposed to the ratio decidendi (key part of the ruling), no legal explanation or reasoning was given for this position. This court will now rectify that situation.

[7]. When you sign up to Reddit and Discord, you agree to be bound by their Terms of Service. Not only do you agree to adhere to their rules, but you also agree to carry out any duties that may be imposed on you as a condition of your continued use. This is why those who occupy moderator positions have to carry out certain additional duties under the Terms of Service. As practically everyone in SimDemocracy uses these two platforms, everyone is bound by these terms.

[8]. Subsequently, the Terms of Service were binding when the Constitution was being drafted. It was binding on the drafters who drafted it, the Senate which passed it, and the people who ratified it. The passage of the current Constitution and every constitution prior therefore included the unwritten fact that the Terms of Service was a higher law which superseded all else.

[9]. This arrangement was not agreed to in the ratification referendum, not in the Senate vote, nor in the initial drafting of the Constitution. This was agreed to the day you joined Reddit and Discord, and subsequently SimDemocracy.

[10]. By continuing to use these two platforms, SimDemocracy continues to be bound by the Terms of Service as a higher law. Such an arrangement can not be modified unless we (1) physically relocate platforms (to which we must abide by their Terms of Service instead), or (2) have Reddit or Discord amend their own Terms of Service.

[11]. In this respect, IRL law is justiciable in court as both the Reddit and Discord Terms of Service prohibit the use of their platforms for IRL unlawful activity.

Issue 2: Does the government have a duty to remove self-described minors?

[12]. IRL law is extremely broad, but as Reddit and Discord both use the presumption that IRL law, in general, states that you have to be over 18 to view NSFW content, this will be the presumption that this court uses. It is also worth noting that the legal age to view NSFW (pornographic) content is usually different from the age of consent and these concepts should not be confused with one another.

[13]. Before we answer the petitioner’s question of whether the government has a duty to remove self-described minors, we should answer a more encompassing question not contemplated by the petitioner. Does the government have a duty to institute checks to ensure that only those over the age of 18 can access NSFW channels?

[14]. The answer is no. Despite IRL law mandating that only people over the age of 18 may view NSFW content, the government itself has no duty under IRL law to institute those checks. This is because the responsibility of vetting people’s ages is borne by Discord, not the government. The Discord Community Guidelines (which itself is a part of the Terms of Service) requires that a NSFW label is applied to all NSFW content. That’s it. The checks of whether someone is over the age of 18 is done by Discord (using the NSFW tag mechanism) and any legal repercussions thereof when such checks are not properly done is also borne by it, not the SimDemocracy government.

[15]. However, just because the legal responsibility lies on Discord to enforce laws on NSFW content, does not mean that the government has no responsibilities or duties that derive from IRL law. Discord has a right to impose duties on the government through the Terms of Service to help it enforce its own legal responsibilities.

[16]. For example, there is an existing duty on the government to ban anyone who is self-described as under 13 years old. If moderators are aware that someone is under 13 on the SimDemocracy server and does not seek to remove them or report them to the Discord Trust and Safety Team, Discord will “take action on the server and/or owner”.

[17]. This duty under the Terms of Service was not arbitrarily imposed. It originates from IRL law, specifically the United States’ COPPA law which imposes regulations on websites and online services which cater to under 13s. In order to be exempt from these regulations, Discord’s Terms of Service imposes a blanket ban on under 13s from using their service. Discord shares the work of enforcing their legal obligations by imposing a duty on the government.

[18]. So while Discord may be the one with the legal obligation under IRL law to ensure under 18s do not access NSFW content, Discord reserves the right to impose a duty on the government to help with their obligations. And while Discord doesn’t make the government institute checks to ensure only those over 18 access NSFW channels, this still leaves the petitioner’s question unanswered. Does the government have a duty, under the Terms of Service, to remove self-described minors for NSFW channels?

[19]. The answer is it does. Not only is it a logical extension to the legal duty the government has to remove under 13s from SimDemocracy, it is a duty explicitly affirmed by Discord on Twitter, which wrote “if a moderator knows that an underage person is viewing the content the (sic.) it will be their responsibility to gate the content”.

[20]. The continued non-enforcement of this policy by the government is a breach of their duty under the Terms of Service and is therefore unlawful.

[21]. As a clarification to who the “government” is in this situation, any person with the relevant permissions (such as manage messages, kick, or ban), regardless of their role, and regardless of any existing constitutional, statutory, or lower laws is duty bound to carry out duties that originate from the Terms of Service and IRL law. This is because Discord (as well as Reddit and IRL law enforcement) does not make any distinction between what it classifies as moderators, regardless of whatever role you hold within SimDemocracy.

[22]. And as a side note, in their response, the respondent claims that Discord “does not enforce IRL laws regarding NSFW content”. This is factually incorrect. Discord does enforce said laws. When someone it suspects is under 18, it will suspend that user’s privileges of being able to access NSFW content and that user would be required to submit a photo ID in order to restore their privileges. Whether or not Discord and other platforms enforce it well is not within the purview of this court, nor is it a legally valid or sound justification for why we shouldn’t follow the law.

Issue 3: Does the government have other ToS duties regarding NSFW channels?

[23]. Removing self-described minors from NSFW channels, however, is not the only duty the Discord Terms of Service imposes on the government. There are other implied duties that were not contemplated by either the petitioner or the respondent. It would be impossible to enumerate every implied duty, but this court identifies two major ones.

[24]. The first implied duty is that the government must ensure that members of law enforcement under the age of 18, and members who do not wish to deal with NSFW content, are not moderating NSFW channels or encountering NSFW content in their work (e.g. police investigations).

[25]. The Director of Investigation has already told us that Discord rules help them uphold this first implied duty. We therefore have no reason, as of this moment, to suspect that the government is violating this duty.

[26]. The second implied duty is that the government must ensure there is a sufficient number of law enforcement to enforce the Discord Community Guidelines and SimDemocracy law in NSFW channels. Having large swathes of law enforcement being unable to enter these channels risks them being zones of lawlessness. The government is held accountable for the actions that happen within these channels because they are within our jurisdiction. They can not claim exemption of accountability due to lack of personnel.

[27]. In order to check whether there was compliance with the second implied duty, the Supreme Court issued a form to all members of law enforcement of whether they were over 18 and were willing to moderate NSFW channels at their own accord. For the record, the court took the necessary precautions as required under constitutional data protection law. The form showed that only 2 out of 8 law enforcement officers were over 18 and willing to moderate NSFW channels.

[28]. From the findings in 27, this court does not have sufficient confidence that the second implied duty is being upheld by the government. Having only two eligible officers to patrol NSFW channels means that there is a reasonable possibility there are periods of time where there are no eligible law enforcement members.

[29]. Therefore, the government is also in breach of their duties as stipulated under the Terms of Service by having insufficient eligible members of law enforcement to moderate NSFW channels.

Verdict

[30]. As the government is in breach of several duties imposed by the Discord Terms of Service, this court issues an injunction against the continued running of NSFW channels on the Discord.

[31]. While the injunction is in effect, all NSFW channels on the Discord must be closed.

[32]. The injunction will remain in effect until the Director of Investigation, or the relevant competent authority, issues an application, which is approved by this court, proving that (1) there are internal policies or procedures in removing self-declared minors from NSFW channels and (2) there are a sufficient number of law enforcement members which are over 18 and willing to moderate NSFW channels at their own accord.