Does Stack Exchange have a responsibility to protect the rights of their volunteers?

Question

The question is focused on the company's responsibility for taking action without just cause against an appointed moderator on Meta Stack Exchange (herein called SE).

There is a moderator contract agreement ^1. which states
[emphasis in bold mine]

I acknowledge and agree that as a moderator for Stack Exchange Inc.

i. I will abide by the then-current Terms of Service of Meta Stack Exchange, and other moderator policies made available to me,

ii. I acknowledge that I may have access to potentially personally-identifying information about Meta Stack Exchange users and that in connection with such access

 a. I will use such information solely in accordance with the then-current Privacy Policy of Meta Stack Exchange,
 b. I will not disclose this information to anyone,
 c. I will not store or copy this information and
 d. I will only use such information in connection with performance as a Meta Stack Exchange moderator for the benefit of Meta Stack Exchange.

I acknowledge and agree that I am an independent volunteer moderator to Meta Stack Exchange and I am not an employee, agent or representative of Stack Exchange Inc., and I have no authority to bind Stack Exchange Inc. in any manner. Stack Exchange Inc. reserves the right to terminate my privileges as a moderator at any time without warning.

But the contract agreement ^1. fails to mention anything about SE's responsibilities not to malign the good name and reputation of its volunteers.

At 2:56, September 29th, 2019 a moderator posted a farewell letter to her peers, friends, and users on Mi Yodeya, informing them that the company hosting the sites where she had contributed and volunteered for several years, had unceremoniously stripped her moderating privileges.

1. … I saw my diamond disappear before my eyes and briefly saw an announcement from a CM [Community Manager] in TL [Teachers' lounge] that contained false allegations against me. When I tried to respond I was booted from the room. Around this time I received email firing me. This email did not cite anything I have done wrong; […]
   In TL and now in answers here and elsewhere, Stack Exchange employees made vague statements implying that I oppose inclusion and respectful behavior, which is false and adds insult on top of the injury already done. I suspect a profound misunderstanding is at the root of their behavior, but all of my attempts to resolve it have gone unanswered.

At 20:19, September 29th 2019, the Director of Q&A, Ms. Sara Chipps, posted a reply beneath Monica Cellio's letter. Note that Cellio's letter of statement never named Ms Chipps in person.

In its entirety [emphasis mine]

2. We understand there are some folks upset about this decision. We aren’t going to share specifics out of respect for all individuals involved but this is a site reaching millions of people and we have to do what we believe fosters a spirit of inclusion and respect. When a moderator violates that, we will always do our best to resolve it with them privately. When we can’t we must take action. This is always done based on what we believe is best for all SE users.
   @Sara Chipps

On October 1st, 2019, an article was published on the The Register, an online publication that claims to reach: “more than nine million monthly unique browsers worldwide. The core audiences are the UK and US, accounting for more than six million.”

3. Asked to confirm that Cellio was the moderator in question, a company spokesperson said, "Cellio (she/her) would not use stated pronouns, which violates our current CoC. We are soon publishing an update to the CoC to even more explicitly cite misgendering users or moderators as a violation."

On October 3rd, 2019, the Director of Public Q&A posted this public announcement. Below is the first sentence from An Update to our Community and an Apology

4. Last week we made an important decision for our community. We removed a moderator for repeatedly violating our existing Code of Conduct and being unwilling to accept our CM’s repeated requests to change that behavior.

On October 6th, 2019, the company CTO, David Fullerton, along with Sara Chipps, Tim Post and the community management team, posted a letter of apology on Meta SE acknowledging the several mistakes the company committed which led to the ensuing fracas. However, despite being “deeply sorry”, the CTO made no attempt to repair the harm made against Monica Cellio or refute Ms Chipps' report that the company-appointed mod had repeatedly violated the Code of Conduct.

5. Second, we hurt a longstanding member of the community and an important volunteer moderator. She deserved the benefit of a private, comprehensive process. In the absence of a clear process for handling this kind of situation, we should have taken inspiration from our existing Moderator Action Review Process. We made a decision to act quickly, which I personally approved, but in doing so skipped several critical parts of the process.

Openly accusing a moderator of violating, repeatedly, the CoC is a serious accusation, and one which has yet to be proven, despite Cellio's repeated pleas in private emails and on meta to see the evidence.

29th October, 2019, Monica commented

6. 

A moderator, even an appointed one who uses their real name, continues to possess statutory rights. Stack Exchange, for whom 568 moderators offer their services free of charge, should have a duty of care to protect the health and safety of these dedicated volunteers, it seems reasonable to surmise that SE is also legally obliged to respect the rights of their moderators, which would include not smearing their reputation on a website or reporting their real name to the press.

Because there is an contract agreement between the two parties–SE and moderators– this makes me wonder whether a US company has the duty to protect the privacy and identity of their volunteers who wish to remain anonymous online. What would happen if sensitive information were to be leaked or carelessly revealed by one or more of its employees to the press or on a public website? Could a moderator therefore seek legal counsel?

• Does Stack Exchange have a legal responsibility to protect the rights of its moderators?
• Does Stack Exchange have the responsibility to not violate the rights of its moderators?

ADDENDUM

November 4th, 2019

Unbeknownst to me, there appears to be a significant difference between an agreement and a contract. Although the two terms are sometimes used interchangeably, a written or verbal agreement is always informal, it does not require the services of a lawyer, and it cannot be enforced by the law whereas a contract (verbal or written) can only be prepared through law and legal means and is legally binding. However, an agreement (despite its name) can be considered a contract if the following criteria are met.

1. Offer and Acceptance (the offer and the necessary condition before accepting)
2. Mutual Consent (the parties are in agreement)
3. Consideration (what is the value exchanged)
4. Competence (the signees are adult and of sound mind)
5. Legal Purpose (the offer and its acceptance must be legal)

For more details, see https://www.diffen.com/difference/Agreement_vs_Contract and https://www.marketing91.com/agreement-versus-contract/

---

_{Many thanks to @Anne Daunted who prompted me to add the second question.}

<sub>See also:
1. Is Stack Exchange in violation of New York labor law, in using volunteer moderators?
2. Why haven't the statements to the Register been retracted?
3. KorvinStarmast's answer on Allow Monica to have a structured conversation (à la mediation) with SE leadership</sub>

Answer 1

I'd certainly feel there's a moral responsibility.

Volunteers – and not just on the moderator team, do spend their time, energy and effort in trying to make the network a better place.

There's a fair amount of things that moderators end up dealing with. While on a good day it's pretty fun, I'd say we've lost a lot of moderators simply because they've lost their trust in SE to protect the folks. CoCs don't do much unless you're willing to put in the legwork to get people on board.

Even in calmer days, you have folks foolish enough to try to pressure you into changing a decision, through... nonstandard means (I have a bunch of deleted comments on my blog asking about comment deletions, ranging from polite to full blown toxic donkey hat.)

Even the triggering events for the new CoC were not handled as they happened. There felt like there was either an attempt to shock and awe us (which went badly) or a series of constantly accelerating missteps, and a certain paralysis, or sudden inability to act quickly (as opposed to how things started off - a little too rushed).

Unless SE hires a lot more CMs (and that would be a nice thing), the folks who know/feel the sentiment on the ground and end up having to deal with the community are the moderators. We try to give feedback what they need to know, but there's not always folks around when you need them.

And well – we don't feel SE has our backs. Individual staff members we do trust. But as an organisation – the duty of care that we need seems to have been forgotten.

I'm not an SO user – and when we were told SO's success was essential, and that the company needed to focus on them, we trusted them.

When Careers failed to live up to expectations and folks were let go – while in sheer numbers they were probably not the worst affected, we felt the loss of developers and community managers the most – and by proportion they were the worst hit. We lost a lot of the support we had from the CM team simply because they were too stretched. We ended up picking up a lot of the slack – and well ended up relying a lot more on the TL and each other.

That this crisis allegedly started in the TL kinda reflects that well–it turned into a bit of a pressure cooker.

I believe Sara mentioned that outside the community team, folks were scared of meta – I reached out to another member of staff I knew from chat, and asked if it was ok to translate a blog post to meta so she could get input from us. That actually went very well, and I think the Community/Public Q&A Dev team has a foothold here because they worked with us. I don't think they need my help any more but having good relationships with mods opens doors.

Now though – I'm not sure if the folks further up the line have our backs. I'll certainly try to help folks like the CM team and the development team where I can, but it feels like if I get hit by someone trying to do a character hit job on me, of if I manage to pick a fight with the wrong staff member, I'm gone. Not just gone. Maybe I'll see my handle on The Register.

While we've stood by SE; we're not sure if we'll be stood by, or stood up, or worse.

While there's a few of us – a lot of volunteers help things run well. Forgive me if I miss anyone – but imagine SE if we had no moderators. Or if we lacked SmokeDetector (my rivalry with that little scamp over chat volume and flags aside) to help get rid of the worst of spam. Or just the folks.

We've done a fair bit – and to a large extent, the smooth running of the network relies on moderators. We certainly don't do it for the money, or even the swag.

That said, we do expect to have support. We're in the middle of a crisis that's hurting our communities. I had someone at work ask me about the mess with Monica, because he heard it on a programming podcast he listens to (I'd check which one, but it's a different site than my usual). I wasn't sure what to say.

That one of our own is in a terrible situation? That we're trying to get things so it won't happen.

We've also had moderators quit, because the end result of this was they didn't feel safe here after the CoC that was meant to protect them resulted in a ton of hate speech on the network. And well, the numbers of moderators we have lost due to the many recent events have been depressingly high.

Answer 2

I think your question is one of the most essential takeaways from the whole "Monica situation".

As the consensus right now seems to be:

• In the current setup, there are no defined rules/procedures in place that Stack Exchange Inc. has to follow
• Yet, we have heard by now many times that many moderators express "We don't feel any backing by the company"

I think the logical consequence should actually be a "no brainer": the overall moderator community should work together and write down what they think needs to be written down. It isn't necessary to reflect on all the things went wrong ... instead: define what you want in your future!

It isn't enough that Stack Exchange Inc. put out a proposal for a formalized moderator review/reinstantiation process. The moderators better define a set of guarantees/rules/practices to be added to the existing agreement.

In other words: there shouldn't be a "one way" moderator agreement, there should be a "bidirectional" team charter (maybe on top of the moderator agreement). So that both sides have formal documentation of what is expected, and what rights are upheld!

Answer 3

Of course they do.

But not only they didn't, they also positively violated them.

Now, I'm afraid they're gonna have to answer in court for this. And not by lack of trying (and incredible patience) from the victim's part to resolve this in a friendly manner.

Just figured I'd add this answer here for you since if you're genuinely expecting an official, satisfactory response from the company, everything seems to indicate you won't be getting it anytime soon.

Answer 4

Perhaps not an answer (since it's not completely clear what you're asking), but too long for a comment:

You wrote, "it seems reasonable to surmise that SE is also legally obliged to respect the rights of their moderators." It's fine to speak vaguely about someone's rights according to common sense and morality. But if you want to talk about legal rights, you should write in a more precise way. For example, when talking about legal rights, one should specify what rights are held under what law.

I think I get what you're trying to ask, though. I think it might be the following: when someone agrees to serve as a moderator, they commit to certain responsibilities. These are built into the moderator's relationship with SE. Some of these responsibilities are written down but maybe there are some that aren't. Now, let's start looking at the opposite direction. What responsibilities does SE have as regards the volunteer moderators? What may a moderator reasonably expect from the company? For example, perhaps it would be a good idea to build into the company-moderator relationship a documented expectation that if the company wants to unconfer moderator credentials, it should dialogue with the moderator to make them aware of a problem, and attempt to work through it, before pulling the plug.

Also, maybe it would be a good idea for a representative of the company to sign a commitment that announcements will be clearly communicated to moderators, without them having to go hunt down company announcements in a sometimes toxic teachers' lounge. Some individuals can talk about what they think would be moral and just agreements; at the moment, the company can do whatever the heck it wants. If moderators coordinate among themselves to make certain requests, they may be able to push the relationship to become more of a two-way street....

So, my answer would be, SE is not legally obligated to do much (although presumably it is legally obligated to respect its moderators' right to privacy in the press). However, once a large number of people coordinate to voice a common proposal, the relationship could become more two-directional.

Is any of that at all related to what you were trying to accomplish with this post?

Answer 5

SE has an obligation to look after all the site's users, not just volunteers. In that respect volunteers should not expect exceptions to be made for them, although of course some extra reward for donating additional time should also exist.

Answer 6

First: Do the rights of moderators differ from the rights of any other user — and by extension basic human rights?

If the answer is "yes" — think again, but if the answer is "no" under which jurisdiction does this case fall?

If the mod in question is an American citizen, she could take it to court and try to fight an expensive and extensive battle with SO. If the mod isn't American then how would she fight?

Let's go law by law in the mod contract and see where the holes are and whom they benefit.

i. I will abide by the then-current Terms of Service of Meta Stack Exchange, and other moderator policies made available to me,

Here, the main factors are which ToS and which community they are tied to. This means that if suddenly the ToS decided to switch to totalitarian regime, mods would be forced to enforce it. The sheer action and control of moderators are at the mercy of SO with the presumption that the ToS of the company will stay in the best interest of the community. The ToS is basically a semi complete interpretation of human rights — where a major issue is cross-country prosecution.

Here we need to distinguish USA citizens and non-USA citizens.

• If a USA citizen is breaking some major rules (such as human rights) SO can prosecute them in their own country — which means that American citizens are more exposed here than we wish to believe. For non USA citizens, at best SO can petition the country of that user to prosecute it in place of SO, but if country doesn't care, that is about it.
• On other hand, if a USA citizen finds SO under some violation, they can hold them responsible under some financial and time expenses. If non USA citizens try to pursue them, then it needs to go through international laws and local laws translations. This in the end becomes more expensive/tiresome and with less chance of winning than USA issue.

In the best case scenario (if a user is able to) gather your money and if it is that important to you, go for it. But any chance of victory is small.

I acknowledge that I may have access to potentially personally-identifying information about Meta Stack Exchange users and that in connection with such access

In general no one should (except your government) have access to your personal information without your consent. But that is circumvented by the ToS with "by using this platform you are accepting our term of service (in which you grant your personal info to the company by your own volition)" or something similar. So any mods or users are in same boat here: you can't accept that they will protect your privacy if they don't protect the privacy of any other user.

Generally, since most websites give you an ultimatum to share your private information or not use their website, and now with cookie policies — this battle is long lost

a. I will use such information solely in accordance with the then-current Privacy Policy of Meta Stack Exchange,

Same as (I) first one, with major loopholes that will be described later.

 b. I will not disclose this information to anyone,

"I will not disclose this information to anyone, except to users who are already familiar with it" meaning other mods, and users whose private information is in question. This is major loophole that can be exploited by social engineering.

c. I will not store or copy this information

Since this information can be copied/shared by the company only.

 d. I will only use such information in connection with performance as a Meta Stack Exchange moderator for the benefit of Meta Stack Exchange.

And the benefits of MSE (XX) are generally vague. I need to mention here the wording of "benefit", which means that as long as it is beneficial to MSE (or SO) that information can be used however/whenever. What constitutes a benefit of MSE? If by "benefit" we mean financial gain, then all from a-c can be disregarded by trading with personal info, if by "benefit" we mean community standard, then can we share that data to third party companies without their consent?

I acknowledge and agree that I am an independent volunteer moderator to Meta Stack Exchange and I am not an employee, agent or representative of Stack Exchange Inc., and I have no authority to bind Stack Exchange Inc. in any manner. Stack Exchange Inc. reserves the right to terminate my privileges as a moderator at any time without warning.

And the most interesting part.

• "I have no authority to bind Stack Exchange Inc. in any manner." — aka I have no ability to deem SE Inc responsible for any violation of said rules (by another user on behalf of the company, by some other user) — therefore forfeiting our potential for lawsuit. Let's play the blame game, shall we?
• Termination of privileges without warning. Have you ever wondered why this clause is in users' contracts and in the moderator contract? Warning of any kind gives the person (in question) time to prepare a defense, therefore making SE Inc judge, jury and executioner. Once you are terminated (user, privilege or mod ship) you don't have any means to gather the evidence in your favor. This clause isn't here for non USA citizens (since we can't do anything anyways), it is here for any user that can have any amount of legal power over the company. This is generally in violation of human rights, where you must be able to have access to information — but in a smart way. Since then, you must supine SO/SE to get that information and that can take ages and you can be buried under data so you don't have time to prepare for court.

This is something that my father calls a "one-sided contract", and it's a typical contract for mass employment where the main benefactor of such a contract is the company. These kind of contracts can be revised before signing by lawyers present with some leverage or by person intentionally limiting their rights for some other benefit. But since signing the contract is the prerequisite of using the website as a user, we all signed it without reading.

Conclusion:

These types of contracts aren't necessary bad or evil. Companies often need a template to work on maximum amount of workers/users, to be changed later on depending on the case. Since SO (in this case) has a lot of power over us, we take these contracts with the benefit of the doubt and in good faith. Often that is enough for it to hold, and for no one (or rarely someone) to be at the end of the stick.

We as an internet community don't have our international courts, and therefore a lot of information is hidden from us. No one is a saint, and we all have our bad days, maybe she did deserve the termination of mod status, and their apology is in the form of "we are right, we have proof, but please don't sue us". Or SO did make a mistake ... we don't know since we don't have all the data. We have an ex-mod who decided to go out with a bang, and parts of the communication between the mod and SO.

Does Stack Exchange have a legal responsibility to protect the rights of its moderators?

Mods — no. Users (with mods being users themselves) — yes. Is it applicable? Meh, depends. Since this is following the moderator story line, I would suggest that you try to make a two sided contract with SO (since there is no expiration date on a contract, and therefore no penalties for abrupt termination), and to define those rights that you think SO should have legal responsibility to protect. Call a consensus, make a guild or something that enforces those rights and you are golden.

Does Stack Exchange have the responsibility to not violate the rights of its moderators?

Again, which rights? Nowhere in the contract defined what the rights of moderators are. If we are talking about human rights, who is going to enforce it? In my opinion, the second question is just as interpretation of the first one (but from a negative perspective). Without any leverage you can't force anyone to have any responsibility. If you have such luck that you are a USA citizen, then perhaps you can work something out for yourself, but on the other hand you and every other mod is alone against the company.