On Thu, 11 Jul 2013, Steven Gardner wrote: > On 11 July 2013 12:55, Steven Gardner <[email protected]> wrote: > On 11 July 2013 12:37, Kerim Aydin <[email protected]> wrote: > > There are certain Rules that limit certain types of speech (e.g. Illegal to > mislead in > certain ways, reveal private actions). Are those also unenforceable, you > think? > > No. As you noted yourself, limiting certain kinds of speech does not infringe > on the general right of > participation in the fora. But an agreement prohibiting all communication to > the fora - which is what was > contemplated here - carrying with it whatever penalties accrue for violating > agreements, would infringe that > right. IMO, of course.
I think we're on the same page then, actually. I mentioned 'punishment' as a factor, but I didn't mean it to be the only one. E.g. one looks at the whole package to see if the effect on speech is particularly meaningful, can probably come up with some N-prong test etc. that includes strictness, time-limit, punishment, etc. For example, if the contract simply said "I will pay omd for each day e doesn't post. When e posts, e is in violation of the contract, the contract is terminated without further penalty, and the pay ceases". This contract would fit the CFJ. Does it really do anything to 'substantially limit' the right? My overall opinion is that within the boundaries of the contract described in the CFJ, there are probably contracts that would violate and would not violate. So this might be UNDETERMINED. I just don't think R101 is so absolute such that even a simple "you can't reveal this scam until Friday or you have to pay me" would violate it. > It's also worth pointing out that such an agreement, in addition to > infringing > on the general right to participate in the fora, would also infringe on the > specific right in R101(ii) to seek judicial resolution of controversy. Don't think you can pull (ii) in here. What if the contract specifies an alternative 'formal resolution' method? If Agora backs up the method as binding (say some kind of arbitration), this should cover (ii). -G.
