Discussing Illegalities

[Lootman]

The topic about time-barred tax losses was locked with this moderator remark:

"Multiple posters have reported this thread/topic - questioning the legality of some proposed courses of actions. Lemonfool is not prepared to host discussions on things that may be fraudulent or legally questionable, so this topic will now be locked. I appreciate that this may be an over-reaction but we are not prepared to take the risk and do not want the topic to degenerate further into an argument about what is or is not fraudulent, immoral or illegal. Clariman"

It is not my intent to comment on the locking of the topic which had, in any event, reached a consensus. But the reason given is citing a rule that isn't in the TLF rules currently shown at the top of the screen. And since we know that there are no secret rules, then it would appear that a new de facto rule has been created, but not published.

Now of course it is the right of the site sponsor to invent new rules, and that is perhaps inevitable as the site progresses and new forms of naughty behaviour are encountered. That said, it is hard to keep track of "things that are not allowed" if they are not stated anywhere. And there is an unwritten rule that everything that is not explicitly banned in the rules, is allowed.

I suggest that such a rule be added to the official rules, if indeed it is a rule. But I would also be very careful how you phrase it. The intention of such a rule is surely not to ban all discussion of anything that is illegal. There will be many genuine cases where a question is about a proposed course of action, and others contribute by suggesting that it is illegal, or might be, or could be in some circumstances. To block such discussions would actually be the very opposite of helpful.

Moreover what is illegal in one jurisdiction might be perfectly legal in another so, again, care is needed. And of course reasonable people can disagree about what the law is and how/whether it is applied or enforced.

Surely the idea here is to disallow a question such as "How can I murder my wife and get away with it?". But allow a question such as "If I submit a loss on my tax return that is technically time-barred, what are the risks and probable outcomes?" That is the challenge here, along with deciding where the line is drawn between allegations of causing actual harm and mere outbursts of moral outrage and subjectivity.

[Gengulphus]

IMHO there is a general principle that underlies many of the rules: as owners of the site, stooz and Clariman are NOT prepared to allow it to get them into legal trouble - and I fully understand why. So as and when ways that it might do so emerge that are not currently against the published rules, expect new rules to be added. I do think that any such new rules should be published, but equally at least a little bit of time should be taken to make certain a new rule is reasonably well-written before it is published.

In particular, with regard to criminal acts, publishing advice to commit a crime runs a risk of being a crime itself, and so I do not expect stooz and Clariman to accept the site doing it. Obviously there is a potential problem with people suggesting courses of action that are in fact criminal, but that they don't realise are criminal, and there may well be some cases where there is a real question about whether a suggested course of action is criminal or not. But once it's clear that a suggested course of action is criminal, I suspect any advice to do it anyway is going to meet with their disapproval - I don't think arguments like "everyone does it", "you're incredibly unlikely to be caught", "you're incredibly unlikely to be prosecuted", "even if you're caught and prosecuted, the punishment will be just a slap on the wrist", etc, are likely to be accepted.

By the way, one particular comment of yours that I've noticed recently was one you made about learning by advancing a proposition and having it shot down in flames (or not, of course). I think that particular style is likely to be problematic when it's about criminal or potentially criminal acts, because of the risk that someone sees the proposition, takes it as advice, and doesn't see the later shooting-down-in-flames. That risk can be avoided by advancing it as an "Is the following course of action legal?" type question rather than as a statement.

A stab at what an actual rule might say:

* Do not give any advice to commit any criminal act, nor ask for or give any advice about how to commit one or the chances of getting away with committing one. If in any doubt about whether an act is criminal or not, ask whether it is rather than saying anything that might be read as advice to do it.

As a final note, I've only addressed issues to do with criminal law in this post, not those to do with civil law. That doesn't mean that civil law issues are unimportant in this respect: the fact that the existing rules address defamation and copyright makes it clear that they are important. It's just that the civil law issues that I'm aware of are covered reasonably well in the existing rules.

Gengulphus

[Lootman]

In particular, with regard to criminal acts, publishing advice to commit a crime runs a risk of being a crime itself, and so I do not expect stooz and Clariman to accept the site doing it. Obviously there is a potential problem with people suggesting courses of action that are in fact criminal, but that they don't realise are criminal, and there may well be some cases where there is a real question about whether a suggested course of action is criminal or not. But once it's clear that a suggested course of action is criminal, I suspect any advice to do it anyway is going to meet with their disapproval - I don't think arguments like "everyone does it", "you're incredibly unlikely to be caught", "you're incredibly unlikely to be prosecuted", "even if you're caught and prosecuted, the punishment will be just a slap on the wrist", etc, are likely to be accepted.

I actually don't know if publishing advice in an anonymous online forum to commit a crime is itself a crime. So I am following your advice there and asking rather than just guessing or assuming. But it seems at least possible that there is a significant distinction between an actual criminal conspiracy and merely talking about a crime in the abstract.

So if you post that are going to rob a bank and I try and help you by describing alarm systems, safe locks and escape routes, I suspect that crosses the line into criminal conspiracy, and we might both be in trouble. As might stooz and Clariman if they knew about it and did nothing.

But if you asked a question like "what are the odds that someone robbing a bank will get away with it?" and I happen to have access to Scotland Yard's crime database, and tell you that over the last 20 years, 78% of bank robberies were solved and led to convictions, then that's merely a factual discussion which should be no problem, neither for us nor for our noble sponsors.

By the way, one particular comment of yours that I've noticed recently was one you made about learning by advancing a proposition and having it shot down in flames (or not, of course). I think that particular style is likely to be problematic when it's about criminal or potentially criminal acts, because of the risk that someone sees the proposition, takes it as advice, and doesn't see the later shooting-down-in-flames. That risk can be avoided by advancing it as an "Is the following course of action legal?" type question rather than as a statement.

My comment there was intended to be a general one about learning, and I'd agree that it is perhaps a more appropriate approach for an investment forum rather than a critical topic where legality is at stake. But more generally I see it as a positive thing that different contributors here have different skills, approaches and experiences. There is always the ultimate onus on the person asking the question to make sense of what might often be conflicting views about the law and the prudence of any course of action.

Personally I like to hear a diverse set of opinions before making a decision. The opposite of that would be the kind of groupthink that might happen in very tightly controlled forums with a strong house view. If a Lemon acts on advice from here and then gets into legal trouble, I don't believe that the person who gave that advice can be held liable, nor the site sponsors. We are not practicing law here, merely offering opinions and information. But it would be good to get a definitive answer on that, from anyone who knows for certain.

A stab at what an actual rule might say:

Do not give any advice to commit any criminal act, nor ask for or give any advice about how to commit one or the chances of getting away with committing one. If in any doubt about whether an act is criminal or not, ask whether it is rather than saying anything that might be read as advice to do it.

That might work, although I'm not sure that citing statistics about conviction rates for crimes is in itself a problem, as discussed above. And it would be odd if saying "Don't do that as you will be caught and punished" is allowed, but not an observation that, say, a particular law is rarely or never enforced.

And some of the discussions here around such things are more theoretical and curious, such as this recent one. I have no intention of trying this ruse, but I thought it was an interesting thought experiment, and harmless:

viewtopic.php?f=58&t=6445

Finally a somewhat whimsical thought. If this was 1955 and Rosa Parks posted here asking for advice about how to refuse to give up her seat on the bus to a white woman in Montgomery, Alabama, would we all refuse to help because that was an illegal act?

[UncleEbenezer]

Finally a somewhat whimsical thought. If this was 1955 and Rosa Parks posted here asking for advice about how to refuse to give up her seat on the bus to a white woman in Montgomery, Alabama, would we all refuse to help because that was an illegal act?

Our attitudes being those of 1950s Alabama, our diligent moderators would remove the horror of any such subhuman entering our club, let alone asking dodgy questions.

The more relevant question is not whether Rosa Parks could ask such a thing, but whether Atticus Finch could get away with it without being ostracised and perhaps banned.

[Gengulphus]

A stab at what an actual rule might say:

Do not give any advice to commit any criminal act, nor ask for or give any advice about how to commit one or the chances of getting away with committing one. If in any doubt about whether an act is criminal or not, ask whether it is rather than saying anything that might be read as advice to do it.

That might work, although I'm not sure that citing statistics about conviction rates for crimes is in itself a problem, as discussed above. And it would be odd if saying "Don't do that as you will be caught and punished" is allowed, but not an observation that, say, a particular law is rarely or never enforced.

Well, both are about the chances of getting away with it - one says they're close to 0%, the other that they're close to 100%. So I don't see how you think that one is against the rule I've suggested and the other isn't.

I will also point out that the rule I've suggested is about advice about the chances of getting away with it. When it's a purely 'academic' discussion, with no hint that anyone is thinking of committing the crime at all, there's no advice involved and I don't think there should be a problem. It's when there is such a hint that any advice about the chances of getting away with it becomes potentially problematic - and that might even include advice that one won't get away with it (if advice that one won't get away with it is allowed and advice that one will is not, then in principle someone could get the latter by suggesting various courses of action until they fail to get any such advice!).

In any event, my suggested rule is only a suggestion - people can come up with suggested changes to it, other completely different suggestions, etc. And the acid test for all of them is clearly going to be what stooz and Clariman reckon best meets their concerns, not whether you or I approve of them.

And I have thought in fact thought of one change I'll suggest myself: add "Do not use the site to commit any crime." That's because there's nothing in the current rules to prevent people arranging drug deals on the site, nor is it covered by my current suggested rule, since that is only about advice.

Gengulphus

[chas49]

An alternative stab at a rule:

# Topics or posts which incite or encourage a criminal act, or advise on a course of action which is criminal, or any post which is in itself criminal, will be deleted without warning, and appropriate sanctions may be taken against posters of such material. The site owners and moderators will cooperate fully with law enforcement authorities where required.

(For clarity, this is just my suggestion which has not been discussed with the site owners or anyone else and does not represent any official view until or unless published in the Rules.)

[swill453]

I'd say appears to incite or encourage, in the opinion of the moderator(s).

This will cut off tangential arguments about whether it actually does or not.

Scott.

[UncleEbenezer]

An alternative stab at a rule:

# Topics or posts which incite or encourage a criminal act, or advise on a course of action which is criminal,

You can be sure that'll cause all kinds of trouble with posts having no criminal intent, but merely mild humour or sarcasm.

For instance, wouldn't it be good if our current parliament could be hanged instead of hung?

(there are some who would spin that into a serious threat - aggregate it into their horrific statistics about 'trolling' and how threatened they are).

[chas49]

An alternative stab at a rule:

# Topics or posts which incite or encourage a criminal act, or advise on a course of action which is criminal,

You can be sure that'll cause all kinds of trouble with posts having no criminal intent, but merely mild humour or sarcasm.

Except (IMVHO) that the mods are a bunch of sensible intelligent people who can tell the difference. (YMMV of course!)

[PinkDalek]

An alternative stab at a rule:

... The site owners and moderators will cooperate fully with law enforcement authorities where required.

(For clarity, this is just my suggestion which has not been discussed with the site owners or anyone else and does not represent any official view until or unless published in the Rules.)

I'm unsure if the site owners can themselves force the moderators to cooperate. Further, I don't believe it is only law enforcement authorities that the site owners may be obliged to cooperate with. For instance, they might be forced to comply with a court order following a Norwich Pharmacal application.

I think what I'm trying to say is the site owners (and maybe also phpBB or wherever this is hosted) are already under a legal obligation to comply with a variety of matters (subject to the jurisdictional aspects mentioned by lootman earlier).

Is it therefore necessary for them to state such things, unless it is merely to make users aware?

In the same way that the present Rules don't specifically mention (although defamatory remarks are touched upon in the Rules):

Defamation Act 2013 – Guidance and FAQs on Section 5 Regulations
https://www.gov.uk/government/publicati ... egulations

Nor do I believe they need to.

[Lootman]

An alternative stab at a rule:

# Topics or posts which incite or encourage a criminal act, or advise on a course of action which is criminal, or any post which is in itself criminal, will be deleted

It has the virtue of simplicity, and I think it's better than attempting some blanket ban on discussing any or all illegal behaviour. We can have a perfectly reasonable discussion about criminal behaviour and that should be allowed. For instance, a Lemon might have committed a crime and wants to ask about the best way of defending himself. Or the discussion might be general in nature e.g. a discussion about why the conviction rates for bank robbery are declining.

Where the line should get drawn is where there is actual and affirmative solicitation to commit a crime, and your "incite and encourage" covers that.

As for the "advice" part, I don't think anyone here is formally offering legal advice, if only because that requires a license to practice law and a relationship with a client. So I question that much risk pertains to anyone who does give such "advice". I'd say the same for anyone who comes here asking for a cure for a medical condition. We can offer all kinds of quack remedies without risk, because we are not practicing medicine. In other words, we are held to a lower standard than a doctor treating a patient.

There might be an exception there if the Lemon is a licensed doctor or lawyer, and I'd expect them to be more circumspect in their remarks. But I think the rest of us have more freedom to offer alternative help and commentary, subject to not crossing the line and conspiring to commit a crime, or otherwise do harm.

I am excluding the defamation issue here because that has been discussed several times before.

Finally, I think TMF tried to take a strict line on this, and personal/financial advice in general, because it was offering financial products and services, and wanted to be seen as having probity and impeccability. TLF has no such commercial aspirations as far as I am aware. it's really just a semi-private chatroom for a self-selected group of adults and not subject to the financial regulations and restrictions that applied to TMF. So there is no reason to assume that the TMF precepts around such matters are applicable here.

[Gengulphus]

As for the "advice" part, I don't think anyone here is formally offering legal advice, if only because that requires a license to practice law and a relationship with a client. So I question that much risk pertains to anyone who does give such "advice".

I think that most users and moderators have enough common sense to realise that "advise" and related words in a set of rules addressed to all site users have their common or garden meanings, not the specialised meaning they have relating to lawyers giving legal advice, doctors giving medical advice, financial professionals giving financial advice, etc.

And the point that has prompted this is not about the risk taken by the person who gives the advice, but about the risk taken by the site owners. You or I might be happy to take the risk of giving advice about committing a particular criminal act because you or I think the risk is negligible, and you might think that stooz and Clariman ought to be happy to take the risk of allowing that advice of yours to appear on their site for the same reason. But it's their decision whether they're happy to take that risk, not yours or mine...

Edit:

There might be an exception there if the Lemon is a licensed doctor or lawyer, and I'd expect them to be more circumspect in their remarks. But I think the rest of us have more freedom to offer alternative help and commentary, subject to not crossing the line and conspiring to commit a crime, or otherwise do harm.

Whether we have that freedom is up to stooz and Clariman, not to you or me, so I'll take that as meaning that you think we should have that freedom. And so do I - with the proviso that "otherwise do harm" covers other criminal acts connected with committing a crime besides conspiracy to commit one. For example, there's what used to be called "aiding and abetting" a criminal (and may still be, though I think I've seen some alternative form of words that I cannot remember).

Gengulphus

[Clitheroekid]

As for the "advice" part, I don't think anyone here is formally offering legal advice, if only because that requires a license to practice law and a relationship with a client.

That's not correct. Anyone can call themselves a `legal adviser' and offer legal advice. Whether it's worth having is a different matter!

Lemonfool is not prepared to host discussions on things that may be fraudulent or legally questionable

I have to say that everyone seems to be getting their knickers in a twist about nothing. I think this approach, although it superficially sounds reasonable, is completely unworkable.

For a start, what does it really mean? The discussion of things that not only "may be" fraudulent but which are definitely 100% fraudulent is a topic of constant interest.

One of the most important services performed by TMF was warning people of potential fraud, and it's to my mind essential that we are entirely free to discuss such matters here.

Likewise we must be free to discuss matters that are "legally questionable". If someone is seeking advice as to whether a proposed plan of action is legal or not it would be ludicrous to prohibit someone from warning them that it was actually illegal.

I appreciate that this may be an over-reaction but we are not prepared to take the risk

What risk? There is no risk at all in allowing the discussion of "things that may be fraudulent or legally questionable", if only because neither the owners nor the moderators have any criminal intent.

And even if the poster has or had criminal intent merely posting details of his intended (or committed) crime may be extremely unwise but it's not a criminal offence.

I've noticed a recent tendency of a couple of posters (you know who you are!) to become very legalistic about the rules here. This is not justified. The site owners and moderators are volunteers, not a commercial organisation, and it's completely unreasonable to expect them to get bogged down in nit-picking arguments like this. In the present case it would effectively be requiring them to undertake a legal analysis of each post to discover whether it contained any forbidden discussion, which is utterly absurd.

So I think everyone needs to step back and `get real'. The community of Lemon Fools is composed of (mostly!) reasonable and sensible people, and can be trusted not to post anything that is anywhere near inciting people to criminality. I've certainly seen no posts at all regarding "things that may be fraudulent or legally questionable" that come anywhere near justifying deletion, and it's actually very difficult to envisage one that would.

Posters can be – and must be – trusted to behave sensibly because they know that the success of LF depends on them doing so, not because of some complicated set of rules. If a poster behaves like a pillock then they can in most cases be quite adequately dealt with by other posters without the need for `disciplinary’ action from the moderators.

[Lootman]

I think everyone needs to step back and `get real'. The community of Lemon Fools is composed of (mostly!) reasonable and sensible people, and can be trusted not to post anything that is anywhere near inciting people to criminality. I've certainly seen no posts at all regarding "things that may be fraudulent or legally questionable" that come anywhere near justifying deletion, and it's actually very difficult to envisage one that would.

I agree, and only started this thread because of Clariman's choice of words which you have quoted and countered in this post. I also agree that some sense of proportion is needed here. The moral outrage expressed by one Lemon in the tax loss thread was more in keeping with an advocation of child molestation than what the topic was actually about - the rather technical rules about when one might submit a tax loss to claim it.

I'm fairly sure we have no hardened criminals here, nor anyone who has served hard time in prison. And it is perhaps a testament to how squeaky clean we all are, that the worse offences that usually get discussed here are nuances of the tax system and parking tickets.

And as long as that perspective is held here then there is no need for a rule about it, My concern was more that, if there is or will be such a rule, that it be restricted to egregious wrongdoing and not everyday banter about minor legal technicalities.

[melonfool]

I think the premise has been identified incorrectly here.

I think that Lemonfool wants to create and maintain a community with integrity and that is respectable.

Nothing to do with whether the law might come down on us/them, and all to do with being a reputable place to come and get support.

To my mind, no rule is needed, and specifically no rule on 'criminal' acts (discussion, suggestions of) needs to be added. We don't need a rule to tell people not to use the boards to break the law - there are laws that say that and it is thus implicit. With regard to other issues (law breaking that is not criminal) it should simply be the site owners' decision (with the support/help if the mods). And that decision is final.

So, I cannot see the point of these long rambling threads which seem to be coming up practically every time the moderators make a decision someone doesn't like - in essence this is discussing moderation by the back door and the site has always said they don't want discussion of moderation (no idea if that is in 'the rules' - if not, just suck it up).

Mel

[Lootman]

I think that Lemonfool wants to create and maintain a community with integrity and that is respectable.

Nothing to do with whether the law might come down on us/them, and all to do with being a reputable place to come and get support.

I know what you are trying to say there, but the problem with words like "integrity", "respectable" and "reputable" is that they don't necessarily equate with what the law says. I gave the Rosa Parks example earlier - if a law is unjust then it may be "respectable" to disobey it. Indeed it is quite common for people to practice civil disobedience to try and get bad laws changed. Or people simply disobey laws they think are cruel, like previous futile laws against homosexuality.

Or an act of breaking the law may do more good than harm, such as if I double park ny car to run into a burning house to save somebody's life. Or to remedy a previous unjust act.

And this is why we must be able to discuss illegal acts. Because lawbreaking can show "integrity".

We don't need a rule to tell people not to use the boards to break the law - there are laws that say that and it is thus implicit.

I agree with you that we don't need a rule. If something I say here is already illegal, e.g. hate speech, then we need no rule because the law applies in any event. But most of what we are talking about here is ideas and discussion about illegal acts, where the statements made are not themselves illegal, and where it is inconceivable that anyone here would be prosecuted.

So in the prior example, if the OP declared a tax loss after the allowable time period, HMRC might accuse him of something. But if he replies "some anonymous poster on Clariman's website said it was OK", I can't see ether Clariman or that poster being investigated. HMRC would simply tell the OP that he was dumb to believe everything he reads on the internet. and they'd be right.

Bad advice is not illegal and, as CK said, we can usually rely on other posters to correct any bad advice. We don't need a rule about it. In fact we often reach a consensus on;y by offering difference views.

[melonfool]

Bad advice is not illegal and, as CK said, we can usually rely on other posters to correct any bad advice. We don't need a rule about it. In fact we often reach a consensus on;y by offering difference views.

And people have to accept they may be moderated for it and not start new threads about it.

Mel

[panamagold]

And people have to accept they may be moderated for it and not start new threads about it.
Mel

.....and there was I thinking that was the essence of discussion fora Oh well, we live and learn.

diary note,

don't question moderation.

[Gengulphus]

To my mind, no rule is needed, and specifically no rule on 'criminal' acts (discussion, suggestions of) needs to be added. We don't need a rule to tell people not to use the boards to break the law - there are laws that say that and it is thus implicit. With regard to other issues (law breaking that is not criminal) it should simply be the site owners' decision (with the support/help if the mods). And that decision is final.

And if you adopt that approach, you will repeatedly get problems such as user A suggesting lying to the taxman to evade an inconvenient tax rule and user B expressing outrage that anyone here is suggesting criminal tax evasion, neither of which is actually helpful to someone wanting to know how to deal with a tax problem. The moderators / site owners will have to deal with such problems again and again and again, and their decisions will be buried in long-dead threads and users' unreliable memories. And indeed moderators' unreliable memories - sooner or later, some totally inconsistent decisions will be made and a whole lot of fuss will erupt about that.

The purpose of the rules is not to replace the law, but to allow everyone to check what the site owners' policies are reasonably easily and in some cases (e.g. copyright) remind them of the law. For example, there are laws about defamation, so by your argument we don't need rules to tell people not to use the boards for defamatory purposes. But we've got such rules, basically because stooz and Clariman have a policy of steering well clear of conflict with the laws about defamation. If they have similar policies on other areas of the law, that should IMHO be reflected in the rules. And there are grey areas in the law which they might want to steer well clear of, e.g. about exactly when suggesting a criminal course of action becomes incitement to commit the crime.

Gengulphus

[melonfool]

And people have to accept they may be moderated for it and not start new threads about it.
Mel

.....and there was I thinking that was the essence of discussion fora Oh well, we live and learn.

diary note,

don't question moderation.

Yes, there is a note in the rules "The decision of the Admins and Moderators is final."

It is a discussion board, but that doesn't mean you can just discuss anything you like does it? There are loads of things that cannot be discussed.

Mel