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Lance Swain

IM Disclosure Consent

Question

Alright, so I needed to IM someone in regards to a business matter, and got greeted with this:


 (busy response): by speaking with this resident.
You full consent to your chat here being allowed to be copied and Shared
If you Continue this chat

I had no choice but to continue as it's work, no big deal. But couldn't help but think "This can't exclude them from TOS as I never consented, I have no choice as it's my job."

So please, I would prefer a Linden to respond as doing a search on the forums, many people have tried to interpret this the best they could, but with no confirmation from Linden Labs themselves.

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Nobody in SL can override LL's TOS. These disclaimers are an old fad, they used to be very common in picks, less common nowadays. My profile still has a pick about this as a middle finger to those people. 😂

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40 minutes ago, nathrebel said:

ok so he is refering to me 

lets clear this up a little 

1. not in picks or profile

2. i give a busy response when you IM me and that Busy response is me asking your consent

3 it again states if you carry on talking with me you are agreeing to said response

according to TOS i am asking consent and if you dont wish to then dont talk to me in IM

as Clearly stated by TOS i have to ACTIVELY ask for consent

There by i am not allowed to have it as a pick or in my profile as these are not ACTIVELY asking consent

According to a few Lindens what I am doing IS within the TOS rules by ACTIVELY asking consent

That's not how it works mate.

If they do not give you written, explicit consent ("Hereby I allow you to share my IM's") and you share private IM's anyway you can be AR'ed and LL will punish you.

Consent cannot be taken automatically by a silly, worthless disclaimer on your profile, your description or even more laughably, a busy response.

But go ahead, be my guest and get banned for your faulty thinking. One person less who thinks they're above the TOS by using worthless disclaimers.

Edited by Syn Anatine
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1 hour ago, nathrebel said:

as Clearly stated by TOS i have to ACTIVELY ask for consent

No.  I quoted the section of the Community Standards that applies here.  In case you missed it: "Except for the purpose of reporting abuse or any violation of policies to Linden Lab, the remote monitoring, posting or sharing of conversations without a participant’s consent are prohibited." 

It doesn't say that you are required to ask for consent.  It says that the person has to have given you consent.  Asking isn't enough. And simply sending you an IM is not giving consent.  You don't get to define consent.  The person giving it does.

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Wulfie is right, statements in an individual's Profile do not negate the Terms of Service.

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Wulfie is quite right.  The TOS protects you from having private conversations rebroadcast.  Specifically, the Community Standards state, under the heading Disclosure: "Except for the purpose of reporting abuse or any violation of policies to Linden Lab, the remote monitoring, posting or sharing of conversations without a participant’s consent are prohibited." Nobody can require you to give your right to non-disclosure away.

Don't expect a Linden to respond here.  Lindens monitor the forums but rarely post here themselves. The TOS and its related documents speak for themselves.

 

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8 hours ago, nathrebel said:

2. i give a busy response when you IM me and that Busy response is me asking your consent

You don't give a busy response, the system gives it when you are busy. That's no more active than your profile or your picks.

Edited by Madelaine McMasters
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One cannot ever imply or assume consent is given at any point in time without actual physical written or spoken consent by the other party. Just responding back is not giving consent to what they expressed or said or claimed.  Even then that consent can be revoked at any point in time in the future for any reason spoke or unspoken and that person then has to abide by that revocation or face the consequences while here in SL. the disclaimer of the other person via a busy message means nothing; it has no legal grounds to stand on at all. It is a scam a blackmail an or coercion and extortion attempt by those who think they can fool those who are not aware of their rights under the TOS. If they try and use anything you told them you have the full right to report them for breach of TOS. No group or sim or person may take away another persons consent unwillingly by anything they say or state or claim ever. Joining a sim does not give implied or expressed consent. Joining a group does not give implied or expressed consent. responding in an im does not give implied or expressed consent. talking in a group does not give implied or expressed consent, talking in local does not give or imply expressed consent especially if there is only two in local which then does imply partial privacy since no one was around to hear what was said. the TOS  though only applies to what is done in SL and on the forums though. They can actually take what ever you say without your permission and share it outside of SL because LL has no jurisdiction on what people do outside of SL. So if they shared it via an email or posted it somewhere else, or on another service there is little you can do about it but make a complaint to the admins of that service and if they would do anything about removing the content or punishing them for their actions. Which not every place will.

I have known of several groups and sims and users who have used this before. They are all trying to use the users gullibility and lack of knowledge and fear of asking to find out the truth.

Seen lots of groups that say joining this groups gives consent to blah blah blah being done. I have seen sims that make the same claims in their sim rules or covenants. But none of it is true and never was. the only real authority they have is they can kick you from the group or sim and ban you. that is all.

If you are ever really concerned, talk with them them add at the end of the conversation, "I hearby revoke my consent of you using or sharing anything that was said beforehand without further consent being asked from me again." then they can no longer claim you gave them consent because you just revoked that consent at the end.

Edited by Drakonadrgora Darkfold
added a little more detail.
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1 hour ago, nathrebel said:

2. i give a busy response when you IM me and that Busy response is me asking your consent
3 it again states if you carry on talking with me you are agreeing to said response

Hi Nathrebel. Thanks for your interest in my post. Please note that if you read past this >word< you fully agree to my terms and conditions. I advise you not to continue reading past that <word unless you fully agree. Reading past that <word indicates your acceptance of my terms.

My terms are that you will immediately pay me L$100.

If you fail to abide by the terms and conditions you have legally accepted above by the act of reading past that <word you will pay me L$200 in damages.

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2 hours ago, nathrebel said:

3 it again states if you carry on talking with me you are agreeing to said response

Hu? Did you try to talk this through with your lawyer?

@Linden Lab can we have your take on this practice please? I would prefer a slow answer involving your law departmant's feedback - with special attention towards those of your customers considering themselves protected by the GDPR while using your service.

Especially since he says Lindens said it is OK here, is this true?

2 hours ago, nathrebel said:

According to a few Lindens what I am doing IS within the TOS rules by ACTIVELY asking consent

@nathrebel I hereby irrevocably revoke my consent to you publishing anything I ever said or will say in IMs ... 

See where that same logic brought you? Nowhere... I can play the same futile game.

Edited by Fionalein
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2 hours ago, Nalates Urriah said:

Basically, Nathrebel did ask... or more accurately warn and place a condition. Courts have decided that consent can be considered given if it can be shown the user saw the notice/warning/challenge and took some action that shows acceptance. So, opening the package, clicking Agree or OK on a ToS/EULA, and/or using the software.

No, IMHO basically nathrebel did announce "I warn you, I will break the TOS of the plattform we both use if you communicate with me - deal with it." Different beast alltogether as nathrebel is in no position to change the TOS.

IMs are an integral part of the SL virtual world and the only practical way to communicate with folks not in the same place. nathrebel does not allow for any objections and it might be neccesary to use IMs to communicate with them - which you can't. 

My personal advice is: If contacted by such a  person or having any conflict with them: eject/ban/block without hestitation... they would not have it any other way.

Edited by Fionalein
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Just now, LittleMe Jewell said:

While the US courts have said that 'continue on' is legally agreeing, would it maybe not fall into that category since in this case it is within an environment where nathrebel has already agreed to LL's TSO saying the IMs cannot be shared.

Yep. Nothing that nathrebal can do, say, or write can vary the terms he himself agreed to with the Lab. The Lab's TOS/CS/Rulings without doubt require consent from all parties for chat log dissemination.

The lab did leave the question of consent needing to be active or passive vague, but that's typical for the Lab so they can catch out bad actors and ignore mistakes. That very reason is why I doubt we would get any Linden come in here and clarify it. Like all TOS/CS vagueness one errs on the side of caution, because that ban hammer can swing ruthlessly.

It's a fact that the Lab do clearly lean towards active consent, with constant statements that profile disclaimers don't abrogate you from the privacy portions of the TOS/CS.

So, how would I deal with it? If I were writing to nathrebal I would simply start with "I don't agree." and continue my question. He is not obliged to answer of course, but I have actively and clearly denied his request in the same way you can opt out of "this call might be recorded for training and QA purposes". If he shares my chat log after I say "I don't agree" he has 100% broken the rules.

Overall, with this question about a busy message causing consent, I keep coming back to the elephant in the room:

Passive consent is one factor of a few behind #metoo (along with power imbalance, disrespect, and sleazyness of course).
Sleezybag Director: But your honor she didn't say "No" at any point, either while we were getting drunk or while she was unconscious in my bed.
 

Edited by Shudo
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Man I hate those type of disclaimers on profiles, makes me itch to lay down the law and educate them but then I force myself not to...because why waste time on that....

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All I can say about that, Mr. Rebel, is if you share MY IMs with anyone, you'd better have a much higher priced lawyer than I do.

To the OP:  Mr. Swain, if business requires you to deal with this nutjob, I strongly recommend you take your business elsewhere.

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15 hours ago, Nalates Urriah said:

Wow... Everyone seems to have forgotten the court cases over shrink-wrap and basic EULA website agreement acceptance clicks. Even the Linden ToS is a click to proceed to show acceptance.

If anytime you attempt to talk to the person you get the Busy Response with a disclaimer-notice and then proceed, you have given consent. The ToS and Shudo try to define how consent is given. Courts have decided how consent can be considered given. That is what we live with. In Shudo's example their is no visible action recorded that can be offered into evidence. With broken shrink-wrap and EULA clicks the requisite evidence is is there. In Shudo's example, if a combination followed in the text below and that combination were used... it might hold up as use of the combination would be proof of having read. The attorneys on both sides would likely have a field day with the combination use matter.

Having the same notice in the profile simply won't count. You can talk to anyone and never see their profile. As shrink-wrap and EULA's are things to get past that leave a recorded action and stand between the person and the software/whatever they are different than a profile notice that is likely never seen and simply does not stand in front of the one required to give consent. I think most are aware that posted speed limits and stop signs have to be visible to the average driver. If they are obscured by foliage or construction, the law can't be enforced. Profiles would seem to be in the obscured realm.

Basically, Nathrebel did ask... or more accurately warn and place a condition. Courts have decided that consent can be considered given if it can be shown the user saw the notice/warning/challenge and took some action that shows acceptance. So, opening the package, clicking Agree or OK on a ToS/EULA, and/or using the software.

But is it valid if the owning company's policies don't allow such?  It is one thing if the message came from something outside of SL, but within SL wouldn't LL's policy take precedence?  LL's ToS doesn't cover what might happen to IM logs outside of SL anyway, but I would think that LL's ToS overrides nathrebel's warning as far as the sharing of the IM logs within SL?

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9 minutes ago, LittleMe Jewell said:

But is it valid if the owning company's policies don't allow such?  It is one thing if the message came from something outside of SL, but within SL wouldn't LL's policy take precedence?  LL's ToS doesn't cover what might happen to IM logs outside of SL anyway, but I would think that LL's ToS overrides nathrebel's warning as far as the sharing of the IM logs within SL?

Does that matter? LL has the last word on it anyways, nathrebel agreed to that by hitting that checkbox on registration...

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On 2/20/2019 at 9:54 AM, nathrebel said:

ok so he is refering to me 

lets clear this up a little 

1. not in picks or profile

2. i give a busy response when you IM me and that Busy response is me asking your consent

3 it again states if you carry on talking with me you are agreeing to said response

according to TOS i am asking consent and if you dont wish to then dont talk to me in IM

as Clearly stated by TOS i have to ACTIVELY ask for consent

There by i am not allowed to have it as a pick or in my profile as these are not ACTIVELY asking consent

According to a few Lindens what I am doing IS within the TOS rules by ACTIVELY asking consent

Um, no.

I don't know where you live, so I won't say you're entirely off-base here. But if you live in the United States, then you are way off-base and can still be Abuse-Reported. The United States. Supreme Court has already ruled that 1) You cannot sign away your rights and 2) (and this is the one that applies) Implied consent is not consent. Consent can only be given with an affirmative "I AGREE."

Therefore, a "busy response" that claims I am giving my consent to you for sharing my IM by simply using IM to communicate with you is not "legal" in the sense that I am actually giving my consent and, therefore, if should you share the private IM you are breaking Linden Lab Terms of Service.

Do not take my word for it. A Linden has already started and made it very, very clear that any "disclosure" of this type is not enforceable and that those breaking the ToS under this defense will be dealt with as it is not a defense whatsoever and carries no weight. The one and the only way you can get away with it is if you share that IM outside any Linden-controlled property - like Wordpress or something. And even that is questionable.

Let's experiment: Let's talk in IM in world, and you go ahead and repeat my words on some other LL property, for example: here. Then I will AR you, and we will see what happens. Deal?

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56 minutes ago, Fionalein said:

Does that matter? LL has the last word on it anyways, nathrebel agreed to that by hitting that checkbox on registration...

That's the whole point of my question:   Does nathrebel agreeing to LL's TOS overrule someone else agreeing to shared IMs by continuing a conversation with nathrebel, since the US courts have apparently upheld such 'continue on' agreements before.  While the US courts have said that 'continue on' is legally agreeing, would it maybe not fall into that category since in this case it is within an environment where nathrebel has already agreed to LL's TSO saying the IMs cannot be shared.  There have been a few cases in the past where folks have sued LL over TOS stuff and won because of how LL had worded the TOS, so just the fact that someone said yes to the TOS does not guarantee that the TOS will always truly rule within the courts.

 

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16 hours ago, LittleMe Jewell said:

But is it valid if the owning company's policies don't allow such?  It is one thing if the message came from something outside of SL, but within SL wouldn't LL's policy take precedence?  LL's ToS doesn't cover what might happen to IM logs outside of SL anyway, but I would think that LL's ToS overrides nathrebel's warning as far as the sharing of the IM logs within SL?

It might. The problem is in what the ToS says is required consent and what the courts have said is consent. While we enter into the ToS as part of an agreement for service the courts have consistently over ruled ToS agreements that infringe certain individual rights. For example those pesky 'you won't sue me no matter what' clauses get thrown out when people sue them anyway.

But, we are debating opinion on this matter. Until it goes to court all we will have is opinions.

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On 2/21/2019 at 2:26 AM, Nalates Urriah said:

Wow... Everyone seems to have forgotten the court cases over shrink-wrap and basic EULA website agreement acceptance clicks. Even the Linden ToS is a click to proceed to show acceptance.

If anytime you attempt to talk to the person you get the Busy Response with a disclaimer-notice and then proceed, you have given consent. The ToS and Shudo try to define how consent is given. Courts have decided how consent can be considered given. That is what we live with. In Shudo's example their is no visible action recorded that can be offered into evidence. With broken shrink-wrap and EULA clicks the requisite evidence is is there. In Shudo's example, if a combination followed in the text below and that combination were used... it might hold up as use of the combination would be proof of having read. The attorneys on both sides would likely have a field day with the combination use matter.

Having the same notice in the profile simply won't count. You can talk to anyone and never see their profile. As shrink-wrap and EULA's are things to get past that leave a recorded action and stand between the person and the software/whatever they are different than a profile notice that is likely never seen and simply does not stand in front of the one required to give consent. I think most are aware that posted speed limits and stop signs have to be visible to the average driver. If they are obscured by foliage or construction, the law can't be enforced. Profiles would seem to be in the obscured realm.

Basically, Nathrebel did ask... or more accurately warn and place a condition. Courts have decided that consent can be considered given if it can be shown the user saw the notice/warning/challenge and took some action that shows acceptance. So, opening the package, clicking Agree or OK on a ToS/EULA, and/or using the software.

It doesn't work that way, the TOS is the final authority and cannot be circumvented by any disclaimer posted by anyone in any manner. an a-f-k message does not have the authority to override the TOS. a profile disclaimer does not have the authority to override TOS. A nc does not have the authority to override TOS. A group charter does not have the authority to override TOS. A sim covenant does not have the authority to override TOS. No one but LL has the authority to change or override the TOS. It is a legal binding agreement for anyone to access the service, you dont get to change any part of that agreement just to suit your needs or desires. You have no rights but what the TOS and EULA give you, none.

There is a distinct difference between opening a peice of software and reading some bs message someone put in an away message. That is not legally binding by any means for that person is technically not even allowed to ask for any user to waive TOS at all. TOS binds everyone that comes to SL and is final. Anything done against TOS is a reportable and punishable offense.

So no, stating that in a away message is not asking for or gaining consent by the person continuing to talk to that other person. NO ONE can just take consent from anyone or imply consent was given just because they responded or joined a group or entered a sim or turned on rlv, or worn a collar or a relay and set either to auto. 

plus any consent given can immediately for any reason be revoked. So the OP could simply state at the end of every message consent was revoked and the other person would not have consent to do anything with anything that was said.

but the user cannot revoke or override the TOS ever and be expected to be allowed to continue be here. no one is entitled to be here or has any rights to be here but what LL gives them. LL reserves all rights to end your allowance to be here if you break the TOS. It is their choice if you are allowed here not yours.

Same as how any other service provider like a bank or a isp or any other forum can end the agreement allowing you to continue to use them if you break the rules. Trying to claim that you can ovveride the TOS is breaking those rules. NO user has that authority ever.

 

Edited by Drakonadrgora Darkfold
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On 2/22/2019 at 12:07 PM, Drakonadrgora Darkfold said:

It doesn't work that way, the TOS is the final authority and cannot be circumvented by any disclaimer posted by anyone in any manner. an a-f-k message does not have the authority to override the TOS. a profile disclaimer does not have the authority to override TOS. A nc does not have the authority to override TOS. A group charter does not have the authority to override TOS. A sim covenant does not have the authority to override TOS. No one but LL has the authority to change or override the TOS. It is a legal binding agreement for anyone to access the service, you dont get to change any part of that agreement just to suit your needs or desires. You have no rights but what the TOS and EULA give you, none.

There is a distinct difference between opening a peice of software and reading some bs message someone put in an away message. That is not legally binding by any means for that person is technically not even allowed to ask for any user to waive TOS at all. TOS binds everyone that comes to SL and is final. Anything done against TOS is a reportable and punishable offense.

So no, stating that in a away message is not asking for or gaining consent by the person continuing to talk to that other person. NO ONE can just take consent from anyone or imply consent was given just because they responded or joined a group or entered a sim or turned on rlv, or worn a collar or a relay and set either to auto. 

plus any consent given can immediately for any reason be revoked. So the OP could simply state at the end of every message consent was revoked and the other person would not have consent to do anything with anything that was said.

but the user cannot revoke or override the TOS ever and be expected to be allowed to continue be here. no one is entitled to be here or has any rights to be here but what LL gives them. LL reserves all rights to end your allowance to be here if you break the TOS. It is their choice if you are allowed here not yours.

Same as how any other service provider like a bank or a isp or any other forum can end the agreement allowing you to continue to use them if you break the rules. Trying to claim that you can ovveride the TOS is breaking those rules. NO user has that authority ever.

 

Well, I think you are missing the point and RL courts have disagreed with you...

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20 hours ago, Nalates Urriah said:

Well, I think you are missing the point and RL courts have disagreed with you...

It densest matter what rl courts think. here in sl.. ll is the courts and has the final say what is allowed or not. this is a private run service, not a public service. they have the right to remove anyone or set the rules of what is allowed to happen here or not. just like your statement would not mean anything on any other forum or service either that was being run by a private entity or company. trust me if you tried that on some of the forums I was on they would have banned you and not thought twice about it. and you being a blogger would have meant nothing either.

you cannot imply consent was given by any type of message here in sl. shrink wrap is completely different its a physical barrier. an away message is not. for logs here cannot be used as any sort of evidence because logs can be falsified easily because they are stored on the client computer and can be opened and edited at any point in time.

so trying to use a log of is not really a valid or verifiable means of claiming consent was given. honestly a snap shot is not even really valid for even that can be photo shopped.

Edited by Drakonadrgora Darkfold

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