Rich,
I thank you for taking the time to come to this thread and explain some of the thought process involved in deciding policy here in Fauna. I believe that we are in considerable agreement. I think that I can only claim, upon introspection, that my only true disagreement was your characterization of it being “stupid” with regard to maintaining a no-ban policy, brought about by discussions about Bill Leverton, and his admitted scam:
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For us to do otherwise would likely be an extraordinarily stupid thing for me to do, in that by implication, I would be placing myself in legal jeopardy by making the implied assurance that all sellers here ARE guaranteed to be qualified to do business with based on the fact that they ARE selling here. That just is not going to happen, because it CAN'T realistically happen.
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I never had any trouble accepting your policy, although I lobbied for consideration for change. I just don’t think that the discussion was attempting to influence you towards a stupid decision, just a reconsideration that has its inherent pros and cons.
I am not worried about that anymore, but do feel that the legal considerations being discussed here, and their inherent business costs, are at the heart of all Terms of Service (TOS) policies and other site rules and procedures. I think that were you and I to have this discussion one-on-one, it could be brief in many areas because we bring a wealth of experience to the concepts we are debating. In this forum though, many readers haven’t gotten that far in their business “school of hard knocks” education yet. It is for them that I am likely to make this a long post, as context is needed to better illustrate both of our concerns in this issue. I’m not saying that I slept at a Holiday Inn Express last night, but like you, have extensive experience as an owner, and more litigation experience than I wish, unfortunately probably also like you. To refresh myself, I also spent over an hour with an attorney this morning, specifically on this issue (he owed me … for once).
With regard to rule making and policies, often contained in the TOS, I think we both would agree that once you start making rules, you then obligate yourself to apply them consistently. Too many companies have gotten themselves into trouble because they applied them inconsistently, and put them on and off the shelf with too much ease, opening themselves up to litigation. As you point out, more policies mean more policing and more time and more expense. All are extremely valid reasons to not change the status quo.
The banning discussion deals primarily with the concept of banning per se, and not specifically with the merits of Bill Leverton. He was just the catalyst, and now the reference example. I do believe that I have understood your position clearly, but may not have effectively conveyed that, and we both may feel that we have been taken a bit out of context. I certainly did not intend it, nor did you. That said, I am going to once again lift only a part of your last response, and hope that it is not unjust in any manner. It seems to lend itself to what laymen refer to as the “SLIPPERY SLOPE” of legal liabilities that all business owners and managers must be aware of when instituting policies and rules etc. Lawyers make fortunes because of slippery slope litigation against business operators.
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The legal liability I referred to was in reference to the burden that would be taken up if there was any sort of general rule created that known bad guys would not be allowed to post their ads on this site. Any statement, or appearance of a policy along this nature, would quite likely induce an inference that any and all ads MUST be certified and verified, otherwise they just would not be here.
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Any business owner, operator, etc, is on a bit of a slippery slope just as soon as they get their first customer, as you already have any number of statutes, hiring policies, etc, that you must contend with. But for the sake of argument, we are going to assume that Fauna has taken a position on the top of the plateau with regard to rules for its users, and that “Buyer Beware” is posted everywhere, and is not yet on any slope. Many major internet sites, that create a buy-sell-discussion forum for all to participate in, function in this manor, more or less claiming that you enter at your own risk, it’s the Wild West here! This example, of a slope that might apply in the current Fauna banning discussion, starts at the top on that plateau, where its all “buyer beware“, and the operator assumes no liability for transactions here. As you go over the edge, and start down the slope of possible rules and certifications for users, the potential liability to Fauna, and therefore expense, increases:
Top of the plateau: Buyer beware …. Proceed at your own risk!
(Then we nudge over the edge, and the potential for litigation and cost start to go up)
1) This person is an admitted scammer, and it has been brought to my attention (banned).
2) This person is a known scammer (banned).
3) This person is bad, and an accused scammer (suspended).
4) I have heard bad things about this person, but have no direct knowledge (caution icon).
5) I don’t have reason to suspect that this person is bad.
6) I think this person is good.
7) I have reason to believe that this person is good.
8) This person is a Fauna Certified Good Guy (despite disclaimers).
9) I know this person is good and can be trusted.
10) I guarantee that they are good and can be trusted.
11) I guarantee the entire transaction …. Triple your money back !!
There are infinitely more positions on this slope, but this post is already long enough. You may feel that number 8 belongs elsewhere … I only maintain that it is on the slope, somewhere in the middle 50%. Your passage, which I quoted, shows the slide from somewhere near the top of the slope to somewhere near the bottom. It is a genuine business concern, as moving down the slope risks money, and they don’t call it slippery slope for nothing! With each further slide down the slope, a business owner incurs greater risk of litigation, either by a vendor with a claim for slander, defamation, or improper restraint-of-trade, with potential damages. With each further slide you also become more liable to suits from customers who have been ripped off, claiming that you misrepresented the vendors as trustworthy, and they were not. A very legitimate business decision when considering a change in policy would include an evaluation of whether or not having a specific policy is losing you business, and until it is, don’t take on the risk.
The legal decisions made, under advice of counsel in a world of rapidly evolving internet law, are in essence business decisions: Is the upside of any policy worth the risk of potential litigation and cost. And if an owner sticks their toe in that water, there is the risk of being pulled in up to the heel, then ankle, then knee, or thigh, ... all in!
The legal opinion that I got was that position #1, which is Bill Leverton, incurs a very minute risk, and represents the smallest of screening filters. Many TOS are structured with “for cause” or “for discretion” clauses that embrace this situation. But it is a risk, albeit small IMO, and it puts you on the slope.
Rich, you long ago had to consider all of the above, and again, I only went to the trouble on behalf of the viewing audience. My context is all only IMO. I am not in your shoes, but if I were, after much thought, I think that my decision would be to keep posting the “Buyer Beware” signs, and stay off the slope. Our urging was not, however, to move you towards doing something “stupid”, just a review of a business decision, loaded with angles. I would applaud a change in the TOS that would better enable banning. The same logic tells me that I would also scrap the GGC. I don’t expect that to happen. If the GGC survives, I’d lobby that since it invokes a GCC icon, that a “Good Guy De-certified” label or icon is then appropriate for those rare occasions when it happens, just as it did with Bill, in accordance with policy. He is no longer like those of us without a GGC, he is now “De-certified”. It is on the slope, but no further down than the GGC.
I thank you deeply for your time, and for making the Fauna community possible. Hurricanes permitting, I will be wandering about Daytona this year, and definitely want to shake your hand.
And as to your last question of me:
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Does this help clarify my opinion?
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Yes. it does.
Jim Flaherty
The Chameleon Company, LLC
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