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I've been participating in the (ongoing) private beta of Startups. Due to the volume of questions that have arisen on there concerning matters of law, I began wondering what liability there might be for those who post answers and/or StackExchange itself.

The age-old question Is there a Stack Exchange site for Law Questions? If not, why not? is somewhat relevant.

Having read over the network's terms of service in detail, I can't help feeling that they're (perhaps unsurprisingly) a little one-sided. To the extent that they are properly incorporated and binding (which I suspect is doubtful):

  1. Limitation of liability (term 9) reads:

    In no event shall Stack Exchange, its directors, officers, shareholders, employees, members, agents, consultants, contractors, partners, vendors and service providers (including, without limitation, hosting and telecommunications providers) be liable with respect to the Network or the Services for (a) any indirect, incidental, punitive, or consequential damages of any kind whatsoever; (b) damages for loss of use, profits, data, images, Subscriber Content or other intangibles; (c) damages for unauthorized use, non-performance of the Network, errors or omissions; or (d) damages related to downloading or posting Content. Stack Exchange's and the Network's collective liability under this agreement shall be limited to three hundred United States Dollars. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to Subscriber.

    Its effect is further strengthened by the Warranty disclaimer (clause 5).

    Notably, there is no attempt to exclude other subscribers' liability for anything similar. Thus if Alice follows the advice in Bob's post and it results in some damage to her, StackExchange have her agreement that she will not hold them liable but Bob is afforded no such protection.

    Therefore Bob could be held liable to Alice for the consequences of his post.

  2. Indemnity (term 8) reads:

    Subscriber will indemnify and hold Stack Exchange, its directors, officers, employees, agents, consultants, contractors, partners, vendors and service providers (including, without limitation, hosting and telecommunications providers) harmless, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of Subscriber’s access to the Network, use of the Services, the violation of this Agreement by Subscriber, or the infringement by Subscriber, or any third party using the Subscriber's account, of any intellectual property or other right of any person or entity.

    So not only might Alice sue Bob directly, but if she was to sue StackExchange then his indemnity to them could be called upon.

I wonder how many people have really considered the risks to which they are exposing themselves by answering questions on the SE Network. It is certainly making me nervous about answering any further questions on legal topics, but the same logic can be applied to any other subject matter. Surely the terms of service were not intended to discourage honest behaviour?

Of course, I understand why SE have placed clauses such as those above into their terms of service. I just think it must be possible to make them less onerous in the case of genuine and non-malicious attempts to help people resolve their problems—precisely the sort of behaviour that the community is trying to foster.

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    What sort of legal liability do you think you're personally incurring here? All the above referenced passages say is that you agree that you won't sue SE, and since, y'know, this is a free resource, I'm not so sure they're being unreasonable. – Robert Harvey Aug 7 '14 at 23:38
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    As far as legal questions go, I encourage you to never answer them. Few of us are lawyers here, and the lawyers won't work for free, so any answer you get to a legal question here is mostly going to be speculative anyway. We don't dispense genuine legal advice anywhere on the SE network, and we don't say that we do. – Robert Harvey Aug 7 '14 at 23:41
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    I suspect that'd be a fairly useless clause anyway; you don't need to agree to any ToS to read the site, and if someone decides to republish your work then future readers may not even visit Stack Exchange. We could do some sort of click-through EULA, but... still pretty much just theater. – Shog9 Aug 7 '14 at 23:41
  • SE has no ability to confer any indemnity to anyone other than themselves, and by agreeing with the ToS you agree to indemnify them. If you want to protect yourself, either don't answer questions or make sure you only answer those you feel comfortable asking. Expecting SE to somehow indemnify those answering questions is simply not possible. As far as legal advice: Don't offer it if you're not an attorney licensed to practice law in the jurisdiction in question, and if that is the case you should be aware of what your risk and liabilities are if you provide that advice. – Ken White Aug 8 '14 at 0:00
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    (In addition, I'd suspect that a judge isn't going to look too favorably on a lawsuit that says "But JSmith473 at SE told me..." as any sort of actionable cause.) – Ken White Aug 8 '14 at 0:02
  • Because of the theoretical possibility of someone reading too much into one of my answers I say, in my profile, "no guarantee is made as to its correctness or suitability whatsoever". – Richard Aug 8 '14 at 10:38
  • @RobertHarvey: Amongst other things, Bob could be liable for negligent misstatement. As I've explained above, the passages don't just say that SE aren't liable to Alice but they also say that Bob indemnifies SE for their costs in the event that she sues them over his answer. Moreover, as I said above, this applies as much to non-legal questions as to legal ones: for example, Bob might erroneously advise Alice on how to fix a technical problem and Alice suffers some actionable harm as a result (she might permanently lose some valuable data, for example). – eggyal Aug 9 '14 at 6:47
  • @Shog9: Indeed, and I said so myself in the question ("To the extent that they are properly incorporated and binding (which I suspect is doubtful)"). – eggyal Aug 9 '14 at 6:48
  • @KenWhite: That just isn't correct. Term 9 limits not only the liability of SE, but also "its directors, officers, shareholders, employees, members, agents, consultants, contractors, partners, vendors and service providers (including, without limitation, hosting and telecommunications providers)" - my point is that they ought to extend that to also limit Bob's liability. See also my reply to RobertHarvery above re your point on legal advice. And I completely disagree with your suspicion about a judge's view of such a lawsuit; I think it would fall within Chaudhry v Prabhakar here in the UK. – eggyal Aug 9 '14 at 6:51
  • It's a free service. If you're uncomfortable with the potential legal liability, the remedy is to refrain from using it. – Robert Harvey Aug 9 '14 at 20:06
  • @RobertHarvey: Well, that's an excellent way to encourage community participation! Should put a big strap-line on the top of every page: "Post here at your own risk. If someone wants to sue you, not only won't we stop them - we might sue you too!" – eggyal Aug 9 '14 at 20:17
  • Paranoid much? ... You can't get out of bed in the morning without incurring some degree of risk, and nobody's going to indemnify you against that risk either. – Robert Harvey Aug 9 '14 at 20:17
  • @RobertHarvey: Isn't that what the terms of service are for? To handle the situations when a dispute arises? What's the big deal in expanding them to provide users with a little more protection? – eggyal Aug 9 '14 at 20:19
  • The big deal is that SE doesn't want to, they don't have to, and nobody else who runs a website has to either, and they don't. All they can and should do is tell you what you can reasonably expect from them in the way of providing their service to you. But you use the service at your own risk. NOTE: All indemnify means is that you promise not to sue them, and if you stub your toe and injure yourself using the site, it's your fault, not theirs. – Robert Harvey Aug 9 '14 at 20:22
  • @RobertHarvey: I hate to be a pedant, but as a lawyer I am pretty well aware what an indemnity is - and it is not merely "a promise not to sue": it is a promise that you will repay SE for specified things. I don't think saying "nobody else does it" is a good enough answer, especially since relatively few other sites have their users offer advice in ways that could easily give rise to tortious claims. And If SE "don't want to", that's fine... but perhaps it's simply not something that they've considered before: raising it here is the way to query that. – eggyal Aug 9 '14 at 20:26

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