How can we move forward if SE will not admit to wrongdoing for legal reasons?

Question

As I understand, one of the major grievances of the community recently over the situation with Monica is that the Stack Exchange team has not apologized for or admitted to any wrongdoing over making public statements that negatively affect Monica's reputation, here on Meta, per-site metas, and also in the press.

In a few places I have seen speculation that these statements are libelous, and suggestions for Monica to take legal action against Stack Exchange.

I have a strong suspicion that the Stack Exchange team will not explicitly admit to wrongdoing with respect to publicly maligning Monica's reputation, because such a statement would likely be legally damaging to them if this issue is ever litigated. I believe that this is the explanation for their frustratingly cold silence and unsatisfying apologies recently.

For the same reason, I suspect that a major obstacle to reinstating Monica is that doing so is tantamount to admitting fault. Perhaps they hoped Monica would follow the new reinstatement process so that they could in some way assuage the issue without admitting to wrongdoing on their side.

The community has been hoping for and repeatedly asking Stack Exchange to reinstate Monica and apologize for the public statements they made, but this might not be realistically possible because of the legal consequences of doing so.

If this is the case, is there any possible way to move forward and somehow resolve the issue?

Are there any possible actions that Stack Exchange can take towards

1. restoring the community's trust, and
2. righting the wrongs done to Monica,

without doing anything that their legal counsel would advise against?

Alternatively, are there any actions that Monica can take that would allow Stack Exchange to freely apologize for wrongdoing without fear of legal repercussions?

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Edit: Stack Exchange has made a post essentially confirming these suspicions

Answer 1

There are no actions short of reinstating Monica and apologizing that will make me, personally, able to trust SE. No matter how much more attention they pay to meta, or how seriously they take feedback, this is not something that I can get past.

If SE is unwilling to admit wrongdoing, what hope do we have that people will be treated fairly in the future? What happens when SE makes another unfortunate "mistake" and someone suffers for it? Do we just have to accept that for liability reasons, SE will never make up for their mistakes? How much harm can they inflict and get away with under the cover of avoiding legal liability?

Without addressing the festering sore that is the lies, lies of omission, and generally unacceptable "emergency removal", there is no way I can trust SE. If I just "move on" and assume that next time they'll do better, like I've done in the past, it only guarantees I'll be let down again. SE seems to have decided that if they throw enough process and "change" at us, we'll fall for it again. When there was a minimum of trust, that was possible, I could have believed in process. I can no longer do so. Especially not when it seems like every process SE attempts to roll out is deeply flawed. (Like the debacle with the FAQ surrounding the COC changes)

This is the turning point where SE, the company, needs to decide what matters more to them: The trust of the community or corporate security. I have an inkling of which way things will go, but as a community we need to fight to make our voices heard.

Most of us are deeply invested in the success of SE; It has been, for me, a part of my life in minor and major ways for years. I'm hardly the most involved member of the community, but when you see the passion and effort people in the community pour into it for free, in the interests of belonging, of furthering the pursuit of knowledge, it seems foolish to discard that out of fear. We are so mad, so vocal, because we care. We want to trust SE. But if SE cannot trust us, cannot be honest with us, there is no path forward.

Answer 2

The short of it is, we can't. The statements made to The Register cause a fundamental shift in how SE has to be seen. Where before this was a place that attempted to maintain a professional atmosphere and a collaborative community, now there exists the threat of a SE employee deciding to make publicly damaging accusations via the press AND the company will stand behind them. It changed participation on SE from being professionally beneficial to a potential liability.

If SE wanted to move forward with rebuilding trust, it would be by following a path with many steps. But the FIRST step (the only possible one) is to mitigate the damage caused by The Register article. The necessity of this is demonstrated by how simple the new press policy is - "No Comment". No Director-Level employee alive did not already know this.

So it's a question of what is the holdup on taking this first step.

• If SE believes it is a matter of legal exposure then they need to get a lawyer involved who knows the straightforward path out of this. Draft up a contract that spells out what they are willing to do and by when, in exchange for Monica promising not to pursue legal action related to their statements and apology. If everyone agrees, the matter is resolved.
• If the holdup is due to one or more egos being protected, there is little hope at this point. Either the person (or persons) who feel that their ego is threatened needs to have a change of heart, or someone with authority over them needs to step in and overrule their actions. Without those we will continue to be met with smokescreens, avoided questions, strawmen arguments and the like - anything to protect the person(s) who protect their own egos at the cost of doing the right thing.

There has been more than enough time to fix this. The effective silence on the matter speaks volumes.

Answer 3

SE could reinstate Monica's moderator status

SE has now been accused of several wrongs against Monica:

1. Falsely accusing Monica of violating the CoC
2. Falsely accusing Monica of being rude to members of the community who prefer non-gendered pronouns
3. Unfairly removing Monica's moderator status
4. Not following the procedure in removing Monica's moderator status
5. Not providing an adequate reason for the removal of Monica's status
6. Slandering Monica in the press

If SE wanted to take steps to fix this, then they could admit to some of these wrongs - the ones that are unlikely to result in litigation - and then try to put them right.

For example, SE has already admitted that they didn't follow due process in demoting Monica. And this was (at first) received as a positive step by the community.

In a similar way, SE could re-instate Monica's moderator status, on the basis (without Monica having to go through the new reinstatement process) that they "overreacted" or "reacted too quickly" in removing that status. If they did this, without making any admission of guilt over other perceived wrongs, then they shouldn't have to worry about legal proceedings.

Whether or not this step would appease Monica, the other mods or the wider community is another matter. To be honest, I doubt it. But at least it would be a start.

Note: The question asked how they could "move forward". I've tried to answer the question, as written. However, I don't think reinstating Monica's status is anywhere near enough. I've written a second, alternative answer, which spells out what (in my opinion) they should do.

Answer 4

SE could do a complete 180

One solution - the one most of us would like - is for SE to go all out and:

1. Show us the evidence
2. Admit guilt where appropriate
3. Make reparations where they can
4. Publicize their mistakes
5. Do better in the future

Monica seems like a really decent person. SE could bet on that decency. They could assume that she won't take them to court if they start treating her a lot better.

(Even if this assumption is false, it could still be in their best (financial) interests to do what the community perceives as the "right thing". This on-going situation is hurting Monica, damaging the community, and (ultimately) damaging their bottom line)

If they followed this path, they could put this whole situation to bed, once and for all.

Answer 5

Stack Exchange may very well "move forward" regardless.

I've been following events for the last few weeks, and one theme that keeps coming up is that there are only two possibilities here:

1. That an answer to this question will be found, and then, having found the answer.. everyone (SE, the moderators, and other contributors) will together try to get back on track.

2. That SE will die, or become worthless, and everyone's work lost.

I'd like to suggest a third possibility:

3. That the current state of affairs will be the new normal. SE will not back down. They may try to make some small adjustments and win some hearts and minds.. but basically this will be the new normal, and the community can like it or hike it.

Many contributors will leave, but some will stay. New people will come in to fill the gaps. It will not be the same as before, but life will go on. Millions if not Billions of dollars will be made.

Many embittered past contributors will have to live with their regret at having participated as much as they did, same as we all do at the end of any relationship that becomes exploitative.

In short, it is possible that SE will "get away with it".

Answer 6

If this is the case, is there any possible way to move forward and somehow resolve the issue?

They just need to apologize, re-mod, and then apply their own procedure if they think Monica did something warranting a demodding.

Edited; Outside of action(s) to take on SE, retracting the statement done for the press article must be done.

My stance for the last point is nuanced, as Monica didn't violated the CoC, as it was not out and in the end using real life examples to give an opinion is not bypassing the CoC, as it didn't happened on the main site. (It's not like a user got mistreated and flagged it to the CM)

Alternatively, are there any actions that Monica can take that would allow Stack Exchange to freely apologize for wrongdoing without fear of legal repercussions?

Monica was really silent for the whole issue. Stack Exchange must realize that and thanks her, as she didn’t go full public to disclose anything. Even de-moded she followed the policy of chat room Teachers' Lounge (TL).

If Stack Exchange do nothing, they must see that maybe someday Monica only option to defend herself is a full disclosure of what happened. (I think some transcript got leaked, but I don’t know if they are still freely available on the Internet.)

Answer 7

Are there any possible actions that Stack Exchange can take towards [...] without doing anything that their legal counsel would advise against?

Sure. Apologize for removing her with complete disregards of the existing process and reinstate her without any process or need for appeal.

I don't think there is any legal recourse, because nobody ever said it's illegal. It's perfectly legal, it's just wrong.

Answer 8

There is what we all want and is morally right, but that is different from the "facts on the ground". A significant percentage of users of Google services hate Google, and consider the company evil incarnate. But they still use Google services and products because there is no real competition. The Stack Exchange is pretty much in the same boat as far as a venue for Q&A.

The vast majority of SE users are blissfully unaware of recent events. They don't even care about the rules and expectations for participation (unless failures in those areas bite them in the butt). They come for questions and answers. They have zero interest in site "politics".

The people who are aware are the people who frequent Meta SE, which appears from posts to be mostly a small core of experienced users and moderators. We're hardly a blip in the volume of site traffic, and a small minority even of the user base responsible for creating content.

The reality is that we're angry and disappointed, and loud about it, but we don't matter all that much, at least in the short term.

SOI staff time is being diverted to deal with the chaos and fallout, so that's a temporary resource drain that will delay action on whatever they would otherwise be working on. It's hard on the front line staff taking the brunt of it, who probably had little direct responsibility for causing the chaos.

Moderation, particularly on some sites, has been curtailed, making those sites less effective. But that is temporary. Many of the moderators who took a stand saw how it was damaging what they actually cared about, and decided to continue serving their community, despite their feelings about the corporation. In the not-too-distant future, something will happen to restore moderator services on the affected sites.

The network will lose some number of experienced users, either leaving or seriously curtailing their contributions. It will be one of the factors affecting the overall quality of content. Curation activity is likely to be the thing most affected. Both of these will contribute to a long-term decline in content quality and usefulness, but they won't make much difference in the short term.

So to the title question, "how can we move forward", I think the answer is that it involves two parties. SOI will move forward because in the big picture, we're not perceived as critical to the success of the company (probably more the opposite). There might be some long-term price to pay if network usefulness declines, but from a business perspective, that won't matter as long as SE doesn't suck as bad as the alternatives.

How "we", the affected users, move forward will be on us to decide. Some may decide that SOI's behavior is too egregious to overlook. Others may come to the realization that it's like using Google; hate the company but unfortunately, it's the only real game in town. The question is premised on "if", but pretty clearly, the situation is "is". People will need to deal with that reality and make hard personal decisions.

Answer 9

I have a strong suspicion that the Stack Exchange team will not explicitly admit to wrongdoing with respect to publicly maligning Monica's reputation, because such a statement would likely be legally damaging to them if this issue is ever litigated.

An apology might well be legally damaging to them should a suit arise, but the impact of such damage is likely to be purely financial and not large enough to threaten the company. Further, they are already clearly spending significant amounts on handling this issue anyway (consider all the staff time that's gone in to this, including paying any lawyers who are giving them advice on this).

In other words, this is a factor that they certainly should take into account in their decision about how to handle this, but it's not an "it's impossible for us to do this" thing.

I believe that this is the explanation for their frustratingly cold silence and unsatisfying apologies recently.

I find it unlikely that that's the sole reason. If it is, their focus is too narrow and they're ignoring the other extensive financial and non-financial harm this is causing them.

If they present this as, "we cannot do this for legal reasons," when those reasons are not "we'd be breaking the law if we did this" but instead "we'd suffer financial harm," ignoring all other harm that comes from not saying sorry and working to fix the problem, I'd take that an an excuse with other reasons as well behind it, which doesn't bode well for resolving this.

Answer 10

SE could let the community govern itself

SE should recant their accusations towards Monica and revert their illegal relicensing, but that's not sufficient to get trust back at this point.

At this point SE really needs to let the community govern itself. The community has needs and desires that conflict with the company's, and at this point SE needs the community much more than the community needs SE. SE could even separate the community and the company into two legal entities, and content itself with being the community's software and hosting provider.

Answer 11

There are no legal issues here. Admitting fault would have no consequences because they would be admitted a fault in the process, not in the basic principle of the matter (i.e. refusal to use preferred pronouns).

The way to move forward is to accept that using preferred pronouns is going to be a rule, and that Monica isn't using the process created for reinstating moderators, because she can't accept that rule. Since allowing people to ignore preferred pronouns will harm a lot of people and is morally objectionable, there is basically nothing that can be done until Monica changes her mind.