Reference re Length of Summary Bans 2020 SDSC 22
Reference re Length of Summary Bans 2020 SDSC 22
| Date of judgment | 2nd December 2020 |
|---|---|
| Justices | Chief Justice SeaOtter Justice TheMainCharacter Acting Justice Kangawolf |
| Held | Summary bans are permanent in egregious cases, but are appealable via judicial review. |
| Ruling | 3-0 |
| Applicable precedent | Persons summary banned must be informed of their right to judicial review, 33 |
MAJORITY OPINION by Acting Justice Wolf
(with Chief Justice SeaOtter agreeing and Justice TheMainCharacter agreeing except for 33-34.)
Introduction
[1]. The issue presented before the Supreme Court is whether or not summary bans must be permanent. To clarify, a summary ban is not a ban issued in a summary criminal trial but rather a ban legally delivered via the executive branch without the involvement of the judiciary. Prima facie this would appear to be unconstitutional, but the circumstances that will lead to a summary ban are unique and the legal issues that arise are complex. Therefore, this court will attempt to meticulously address each issue to settle any confusion surrounding the legality of summary bans and the legality of their length.
[2]. Summary bans are referenced directly in the Ministries of State Act at Article 5, section 5:
§5. In cases of egregious violation of the Terms of Service of either reddit or discord, or egregious violation of one's Constitutional obligations, a summary ban is allowed.
Arguments Presented to the Court
[3]. The petitioner argues that the Criminal Code contains no provisions that force a permanent ban for violations of Terms of Service (ToS), nor does the Ministries of State Act require a permanent ban be given. In addition, they reference Article 19, sections 2 and 2.5 of the Constitution of SimDemocracy as the source that makes Article 5, section 5 of the Ministries of State Act constitutional. This provision of the Constitution states:
§2. No person shall be deprived of their liberty without due process of law. The following cases shall constitute due process:
§2.5. The lawful suppression, arrest, detention, muting, or ban of a person for the purposes of enforcing the Reddit and Discord Terms of Service and other constitutional obligations of the state.
[4]. Finally, enforcement of Reddit’s TOS directly and Discord’s TOS less explicitly demonstrate that SimDemocracy’s obligations to the TOS of these platforms does not require a permanent ban. The Reddit content policy relevant to the petitioners argument states, “we have a variety of ways of enforcing our rules, including, but not limited to … temporary or permanent suspension of accounts”. The Discord TOS states “we reserve the right to determine what conduct we consider to be a violation of the Terms, Community Guidelines or improper use of the Service and to take action including termination of your Account and exclusion from further participation in the Service.” It was argued by the petitioner that the use of the word “including” implies that a temporary ban is permitted as a consequence to breach of Discord’s ToS.
[5]. The consequence of a permanent ban not being required would then allow, according to the petition, the sentence duration of summary ban to be appealed. They further contend that summary bans must follow the sentencing of the Criminal Code and judicial precedent, and that summary bans are not permitted under Article 75 of the Criminal Code. This is due to sentencing of Article 75 being explicitly required to be administered by a judge, which states at section 4: “The sentence is to be determined by the presiding judge; with acknowledgement of the bounds written in legislation.”
[6]. This court will now attempt to summarise succinctly the respondent’s case.
[7]. The respondent argues that there is a duty of the government of SimDemocracy to enforce ToS. The Ministries of State Act does not constitute the full means by which bans for breach of ToS are permitted. They argue that In re NSFW Discord Channels 2020 SDSC 16 established the ToS as a legally binding set of rules operating outside of criminal jurisdiction. They further contend that the ToS cannot be enforced as set by a lower law because the ToS already sets the terms of its own enforcement. Therefore, the Parliament cannot not legislate any provisions of the ToS to ignore because it is beyond their authority to modify ToS; nor can Parliament delegate enforcement of the ToS to the Courts, since the ToS sets the rules of its own enforcement. The respondent argues that this approach is unjust because the ToS would impose a duty on every user with moderating permissions to enforce punishment for a violation of ToS, and that this is not limited to “egregious” offenses. This duty would not be within the jurisdiction of the judiciary and therefore against the purpose of SimDemocracy.
[8]. The respondent notes that under this line of reasoning, 22 articles within the Criminal Code would be deemed unlawful. Further, the judiciary would only be involved in offenses directly related to the simulation of SimDemocracy that do not concern the ToS. They argue that this reasoning should be rejected in favour of an interpretation that balances the interests of a simulated democracy with the higher law of the ToS, such that egregious breaches of ToS such as posting of gore or doxxing can be dealt with extrajudicially, while minor breaches are dealt with in the existing structure of SimDemocracy as a democratic and judicial institution.
[9]. The next issue raised by the respondent is jurisdiction of ToS breaches. ToS breaches may differ from criminal acts. Although some criminal acts may also be ToS breaches, there are certain ToS breaches such as doxxing which the respondent argues cannot be reconciled with principles extending from criminal jurisdiction (such as the right to a fair hearing). Article 19 of the Constitution formally establishes the already existing structure of the ToS ban. Seven legal means of due process are set out. Six of the seven means require inclusion of the judiciary, thus granting criminal jurisdiction. However, the fifth means of due process does not require this. It states, “The lawful suppression, arrest, detention, muting, or ban of a person for the purposes of enforcing the Reddit and Discord Terms of Service and other constitutional obligations of the state.” This is the provision that the respondent relies on to argue that there are Constitutional grounds for the exclusion of egregious cases of ToS violation without involvement via the court. This interpretation would of course go against the controversial ruling of the court in In re Impeachment of Wolf 2020 SDSC 8 that the judiciary must have some form of involvement in all conflicts. However, the respondent evidences that SimDemocracy’s ticketing system is an example of due process that does not constitutionally require involvement of the judiciary.
[10]. Assigning matters of ToS to a criminal jurisdiction would limit the ability of all moderators to enforce the ToS. This inhibition would impact enforcement of the ToS, thus conflicting with the ToS as its own set of laws that SimDemocracy must abide by. Therefore, the Criminal Code must not impose limitations on enforcement of the ToS by moderators, nor can Parliament pass laws that unreasonably limit enforcement of these terms. By this reasoning the respondent argues that the “egregious” requirement within MOSA merely upholds enforcement of the ToS by delegating less serious breaches of ToS to the courts.
[11]. The fourth issue raised by the respondent concerns the validity of summary ban appeals, which the respondent argues falls outside of appeals due to its extrajudicial nature but falls within the scope of judicial review. This power arises pursuant to Article 26, section 3 of the Constitution which states judicial review is applicable where ”there has been an infringement of rights”. This infringement would arise where enforcement of ToS was not adequate reason for suppression of an individual’s rights or where the conduct in question was not sufficiently “egregious” to not be delegated to the judiciary.
[12]. Finally, the respondent argues that reference cases are merely binding; providing the means to establish precedent, issue injunctions and provide remedies to the petitioner.This would mean that unlike judicial review the Supreme Court does not have the power to rule an Act as unconstitutional. It is further argued that although the Supreme Court may determine its own procedures to meet its constitutional and legal duties, this does not extend to determining the jurisdiction of cases to the point of expanding the Supreme Court’s own jurisdiction.
[13]. I concur with Justice TMC’s ruling, but shall now define what a “moderator” is as well as address several arguments made by the respondent that were unaddressed in TMC’s ruling.
Terms of Service & Moderators
[14] The Supreme Court unanimously held in In re NSFW Discord Channels [2020] SDSC 16 that the Discord ToS supersedes the SimDemocracy Constitution and all other laws beneath the Constitution. The reasoning of this starts with the premise that all users of Discord agree to be bound by the terms of Discord (and Reddit, to which I will not be addressing in this reference case). Quoting the verdict by then Chief Justice Danyo at [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.”
[15] Although this reasoning is prima facie clear and concise, it may be necessary to expand upon the ruling of In re NSFW Discord Channels [2020] SDSC 16 to define what a moderator is. For those wanting to skip past a bunch of legal jibber jabber, move to [33].
[16] It should be noted that while the Community Guidelines (CG) of Discord are not part of the ToS, the ToS directly references CG at three instances. These three instances are:
As a condition of your use of the Service, and without limiting your other obligations under these Terms, you agree to comply with the restrictions and rules of use set forth in these Terms and our Community Guidelines as well as any additional restrictions or rules (such as application-specific rules) set forth in the Service.
As an example, you agree not to use the Service in order to post, upload, transmit or otherwise disseminate information that is objectionable as outlined in our Community Guidelines
These rules of use are not meant to be exhaustive, and we reserve the right to determine what conduct we consider to be a violation of the Terms, Community Guidelines or improper use of the Service and to take action including termination of your Account and exclusion from further participation in the Service.
[17] Both the ToS and CG make no reference to the obligations of “moderators” or “administrators”. In re NSFW Discord Channels [2020] SDSC 16 does not reference any authority within the ToS or CG that gives moderators an enforceable duty in their role as moderators. The closest that case gets is when it states, “[t]his is why those who occupy moderator positions have to carry out certain additional duties under the Terms of Service.”
[18] However, there are documents produced by Discord that are outside the ToS and CG which could be open to the interpretation of placing a duty on moderators. These relevant documents are found under the “safety” heading of the Discord website. The first is titled “Role of Administrators and Moderators on Discord”, produced below.
Administrators are the people who create Discord servers around specific interests. They establish the rules for participating, can invite people to join, and oversee the health and well-being of their community. They have broad administrative control, and can bring in moderators to manage community members. They can also ban or remove members and, if necessary, remove and replace moderators.
Administrators also choose moderators to play a vital role in Discord communities. Their responsibilities might vary, but the overall role is to ensure that their Discord server is a safe, healthy environment for everyone. They can do things like moderate or delete messages, as well as invite, ban, or suspend people who violate the server’s rules. The best moderators typically are seasoned and enthusiastic participants in one or more communities.
Admins and moderators are your first go-to when you encounter an issue in a server. They may be able to respond immediately and help resolve your concerns.
Each Discord server should have written rules for behavior to alleviate confusion or misunderstanding about what goes on for that particular community. These rules, which supplement our Community Guidelines, are your tools to moderate efficiently and transparently. As communities grow, moderators can add more mods to keep a server a fun and welcoming place to be.
[19] This is the first indicator that moderators may have obligations beyond a user who is not a moderator, as demonstrated by the line “These rules, which supplement our Community Guidelines” which indicates these are rules set out by Discord to be followed by moderators and that the rules must merely supplement, not amend or replace the CG.
[20] The second reference made to moderators (and administrators) is in the document titled “Four steps to a super safe server”. The line in question states,
“When enabled, server-wide two-factor authentication (2FA) requires all of your moderators and administrators to have 2FA enabled on their accounts in order to take administrative actions, like deleting messages.”
[21] This does not set out obligations moderators or administrators have to Discord, but rather if two-factor authentication is in place it is a rule put in place by the server owner themself upon the moderators and administrators of the respective server.
[22] The third reference to moderators is in the document “Reporting problems to Discord”, the relevant section stating:
“If you are a Discord user If the violation happened on a server, you should first reach out to the server’s moderators, who may be able to respond immediately and help resolve your concerns. In addition, please remember that you always have the ability to block any users that you don’t want to interact with anymore.
If it happened in a Direct Message or contacting the moderators doesn’t help, fill out the Report Form.
Please make sure to fill in all fields on the form. Providing a concise summary of the issue and including relevant message links will help us respond to your request quickly. You’ll get an email confirming your report, and we’ll send another email when we’ve investigated the situation.”
[23] This establishes that any violation of the rules on a server is to be reported to a moderator and that if that action does not “help” the next action to take is to fill out a report form. The expectation to first go to a moderator does not extend to breaches of rules in direct messages, and is an indication that even in the event that a person is only in a single Discord server moderators are not obliged to assist in ToS breaches within direct messages.
[24] Fourth is a document that references “server admins” and the “server owner”, creating a distinction between the server owner, administrators and (by exclusion of reference) moderators. The relevant section of the document (titled “”Mental health on Discord”) states:
“Contact your server admins
If someone has posted comments about harming themselves in a server, you may consider reaching out to your server administrators or owner to let them know about the situation, so they can moderate their server as needed and provide support to the server member.”
[25] The fifth reference is in “Adult content on Discord”, the relevant section stating:
“NSFW content that is not placed in an age-gated channel will be deleted by moderators, and the user posting that content may be banned from the server.”
[26] The sixth reference is in “Our policies”, the relevant section stating:
“If you come across a message that appears to break these rules, please report it to your server moderator or to us. We might take a number of steps, including issuing a warning, removing the content, or removing the accounts and/or servers responsible.”
[27] All of these sections demonstrate an intention by Discord to impose a duty upon moderators. However, this duty is not created equally. The server owner is the individual who holds the most moderator perms by way of being the server owner. There is no mistaking that by “server owner” Discord is referring to a person who owns a server. It is less clear what the definition of an administrator or moderator is. Discord provides no definition, nor does the legislation of SimDemocracy. Furthermore, consulting a dictionary proves fruitless as the definitions provided are unrelated to how the term “moderator” would be used in the setting of Discord. Thus, until Discord or Parliament provides a definition the Supreme Court ought to provide meaning to these terms.
[28] An Administrator is a moderator who has all perms the server owner has, with the exception of perms that only the server owner can hold such as the ability to delete or transfer ownership of the server. They hold the second highest duty of enforcement of ToS and CG.
[29] What then is a moderator? A moderator is an individual who holds permissions that allow them to enforce the ToS and CG of Discord in a Discord Server. By this definition, a moderator will include someone who can ban, mute, delete and edit the messages of others in a server.
[30] The argument by the respondent that moderators have equal duties is rejected. First, the permissions of a moderator determine their duties. A moderator only with the perm to mute an individual does not have the power to put into consideration whether or not to ban someone, or to ban someone when it is absolutely necessary to do so. As a matter of fact, moderators are not created equally.
[31] Secondly, treating all moderators as having equal duties under the law would go against the spirit of In re NSFW Discord Channels [2020] SDSC 16. Children cannot have a duty imposed on them to enforce ToS and CG where that would require them to interact with materials unsuitable for children (such as NSFW or gore).
[32] There exists a duty upon the State of SimDemocracy to ensure that children with moderator perms are not subjected to such materials in the line of their duties. If this is a duty the State cannot meet then it would be unlawful for the State of SimDemocracy to grant someone under 18 a moderator role.
Judicial Review
[33] I find there also exists an obligation on the State of SimDemocracy to ensure an individual banned for ToS or CG violations is informed of their right to Judicial Review. The absence of this step is to be the absence of due process when banning an individual for ToS or CG violations. If a person is not granted the means to request judicial review, they factually do not have it.
[34] This is made clear from the clause “other constitutional obligations of the state” from Article 19, section 2.5 of the Constitution. The Bill of Rights confer rights to individuals of SimDemocracy. One such right is the right to a fair hearing, pursuant to Article 18 of the Constitution. The State of SimDemocracy has an obligation to not violate this right. Hindering access to a fair hearing would clearly be an instance where this right is violated. Thus, if an individual who is banned is not informed of their right to a fair hearing (via the process of judicial review) the State of SimDemocracy violates this right, and in so doing does not meet the requirements of due process.
MAJORITY OPINION by Justice TheMainCharacter
(With Chief Justice SeaOtter and Acting Justice Kangawolf agreeing except for [51]. Note: [51] is not binding law although [1] through [50] is.)
Nature of reference cases
[35] I would like to first address the arguments on the law regarding reference cases, before delving into the main point of the case before the court.
[36] The respondent argues for a strict separation between the three types of cases the Supreme Court hears. They say that although a reference case sets binding precedent, the power to invalidate laws for violating a higher power is solely for a judicial review.
[37] I respectfully disagree with this assessment. Firstly the court in setting binding precedent can easily issue a judgement where a law is rendered unenforceable if it opines that it is unconstitutional. This would leave a statute in force nominally but not in practice.
[38] Further, it would add to the bureaucracy of the court and make getting desired results unnecessarily difficult. For example, if a person were to be found guilty of a crime under a law they believe to be unconstitutional, would they request an appellate hearing or a judicial review? An appeal would see their verdict overturned but the statute couldn't be struck down. A judicial review would have the opposite problem.
[39] As such, to ensure the court is able to provide just remedies for any issues brought before it, interpreting the petitions brought before the court as strictly falling into one of three categories and limiting the actions available to the court based on those is undesirable. Duties imposed to the government by Terms of Service [40] Terms of Service (ToS) of Reddit and Discord impose upon moderation teams, which in SimDemocracy is the Government, a duty to enforce the Content Policy and Community Guidelines respectively.
[41] These rules therefore constitute a higher law than even the Constitution of SimDemocracy. As such, no Act of Parliament nor constitutional provision may contradict the ToS of these platforms nor may they unduly restrict their enforcement, lest they be invalid.
[42] However, neither platform's ToS stipulate any method of enforcement of these rules that are binding on the moderators, only that they be enforced and offending content removed.
Enforcement of Terms of Service under law
[43] The rules established by ToS are enforced by the state in mainly two ways. By criminalising breaches of ToS, and subsequent action of the criminal justice system, and by direct application of the ToS by the executive.
[44] Both methods draw authority from Article 19 §2 of the constitution which lists seven means whereby due process is satisfied. Six of those relate to criminal justice, with the remaining clause allowing for direct application of ToS. It states as follows:
"§2. No person shall be deprived of their liberty without due process of law. The following cases shall constitute due process:
§2.5. The lawful suppression, arrest, detention, muting, or ban of a person for the purposes of enforcing the Reddit and Discord Terms of Service and other constitutional obligations of the state."
- [44.1] As this means is separate from the criminal justice system, its use in enforcement of ToS is not bound by the Criminal Code and its sentencing guidelines.
Are summary bans permanent bans? [45] Summary bans are established by the Ministries of State Act which says that in case of egregious violations of Terms of Service, a summary ban is allowed.
[46] Summary bans are an application of the due process clause §2.5. cited above.
[47] The intent behind such bans is the quick and effective enforcement of ToS where it would be unreasonable to allow them to be dealt by the judicial system. For example, a person who is part of an organised raid of SimDemocracy is not interested in participating in the legal processes of a hearing and allowing them to do so would only serve to let them cause further harm.
[48] With this in mind, a summary ban has to be permanent to be effective.
Possibility of appeal of summary bans
[49] Due to the extrajudicial nature of summary bans, they do not fall under the scope of appeal. However, as an executive action, they are subject to judicial review. Specifically, two conditions have to be met for a summary ban to be lawful; that a breach of ToS occurred and that it was "egregious".
- [49.1] Flagrant violations of ToS from which it can be reasonably determined that the offender's continued presence would only lead to them further harming the community shall be egregious violations of ToS.
[50] Parliament may provide for a different method of review of summary bans if it so wishes.
[51] My colleagues find an implied right for individuals summarily banned to be informed of the possibility of conducting a judicial review. I disagree with this view. An individual is banned on grounds of breach of ToS with the belief that further contact with the person has too much of a possibility of harm. A right to be informed of the possibility of a judicial review creates an unreasonable obligation on the state to contact such obviously harmful individuals.
