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
