I found this in a TOS while shopping through some hosting sites.
Transmission, storage, or presentation of any information, data or material in violation of any United States, Canada (or any other country) law is prohibited.
Does this seem somehow impossible to anyone else?
I can understand the prohibition of violating the laws of the country(s) in which the company has a presence, but ALL countries? This is inherently impossible as there a things illegal in some countries that are common rights in others, and of course vice versa.
I could see, maybe, countries Hoster is present in and countries Hostee is present in, but 'all' is a little unrealistic.
Jacob - WebOnce Technologies - 30 Day 100% Satisfaction Guarantee - Over 5 Years Going Strong! Website Hosting, PHP4&5, RoR, MySQL 5.0, Reseller Hosting, Development, and Designs
Yes, but even if its legal to send, say as an example, child pornography, in your country...once it hits the server, if they are in a country where it is prohibited, its the companies liability and they can get in big trouble for just having it. That company is probably located in the US or Canada, and well, I know at least in the US, if your not careful with whats on your servers you can get into a big pile of...well, yeah.
It does seem a bit inhibitive, the problem is it's not specific. Since we had a very similarly worded policy at one of my previous employers (US government facility), I think the information it refers are things such as classified government data, corporate trade secrets, and such. This is more an anti-terrorist, anti-espionage measure, although vaguely it also covers pornography and propaganda.
As a lawyer, I think that the exculpatory clause you listed is good and I am going to use it. However, I am going to add the term: Under the Laws of the United States of America, any of it's States, etc....
You also need an indemnification clause in there too which states the person agreeing to this Terms of Service, or Terms and Conditions clause; hereby agrees to hold harmless and indemnify this Internet Service Provider for any legal action resulting from your use of this ISP's server or network, and/or your placing of materials and/or storing materials on said ISP's server. You further agree that you shall tender a defense for the ISP with respect to any legal action resulting from your use of this ISP's system or server, and that you shall bear all attorney fees and cost related to the enforcement of this agreement.
The bottom line is that you cannot put too much exculpatory language in a TOS to cover your tail.
As a lawyer, I think that the exculpatory clause you listed is good and I am going to use it.
Ok then as a lawyer can you speak to I guess the idea I was trying to convey and didn't. ...
Theoretical (bud possible) scenario:
A site lists offenses and holds content critcal of a politician or a political regime in a country widely known in most of the world and held to be oppresive etc. Now this site obviously violates the laws in the country being discussed therefore, under this clause, it is in violation of the TOS, even though the author and the machine on which it resides are not in that country, and are not breaking any laws in the eitehr the author's country or that in which the server resides.
I know what you are saying about covering yourself but I think you still miss the point.
Using my example above ...
I am in Canada, say my hosts server is in the US ... I post a site about, say the situation over the last few years in Rwanda or Sudan or even PRC or some such. This kind of thing is likely illegal in those countries, but I am not breaking the law in either Canada or the US. It seems high handed, not say potentially void under law, to place the user effectively subject to the laws of another country in which don't reside, aren't present in or in any other way subject or related to.
As I said - just seems awfully strange to me and while it's unlikely a host would enforce the clause for an example such as the one I gave above, I personally would not chose to effectively place myself under the laws of another country as interpreted by my web host, even should such a clause prove invalid if challenged legally.
Which is of course my choice and others likely would feel differently. Seems a shame too as they had a package perfect for a site I'm making for a local organization. Oh well, more fish in the sea as they say
The free legal advice I will give on here from time to time, will be limited . The real issue you are talking about would require a complete paid legal analysis.
The bottom line is this. If your stuff can be seen in another country, that country can choose to prosecute you, or allow you to be sued in that country pursuant to their laws no matter what you do or say!!
If that country is a signatory to the Haig convention, then their judgement could be recognized and enforcable in our country. In other words, if a Haig convention country decides to prosecute you, or someone in a Haig convention country gets a judgement against you, it could be enforced against you by US Law. Canada is a signatory to the Haig Convention so the same thing applies in Canada. Without going into specific details on how it works, yes it can, and is done!!
Now if a non Haig convention country decides to prosecute you, or gets a judgment against you, The US will not recognize it unless there is some other treaty with that country. However, if you travel to that country, or a country that does recognize it, then you get zapped.
By being on the internet and by publishing content that can be seen all over the world, you may in fact be giving jurisdiction of yourself to some other country under their laws period. By putting verbage in an exculpatory clause that states: Content cannot violate the laws of any other country, you are not subjecting yourself to their jurisdiction, you are covering your tail in case some other country comes after you by pushing the responsibility onto whoever puts the offending content on the server. Who knows this other fictional country may still hold the host liable too.
It's not a perfect world out there and there are many screwed up countries and laws out there.
Hmmm maybe site publishers need a TOS of their own, losely based on the declaration by adult web sites:
The content of this site is legal in the country of it's creation and/or the country in which the server which provides it resides. Any user who believes that the content of this site would be illegal in their country and their viewing of it in violation of their laws, please leave the site now. All those who proceed to read further fully indemnify the site owner from any actions arising from their use of this site.