Comment by rsync
4 months ago
Forgive me if I’m being dense…
I just read through the entire HN discussion about lobste.rs and continued down that rabbit hole to other discussions of forum, deletions, and the safety act, etc.
The part I don’t understand is: Why aren’t these operators placing the forum into a corporate or partnership entity, without personal liability, that would be the target of some eventual enforcement?
These very small forums Are almost certainly not going to be targeted for enforcement… The issue is simply the risk…
… So why not just incorporate, go on your merry way, and if enforcement goes very differently than we all assume then you walk away from a corporate entity And continue to vacation in London without fear of arrest.
What am I missing here?
The corporate veil can be pierced. https://en.wikipedia.org/wiki/Piercing_the_corporate_veil. From the Wikipedia page, it sounds like this is most common in the United Kingdom when a corporation "is established to avoid an existing obligation" - which is exactly what you're suggesting. I am not licensed to practice law anywhere, but particularly not in the United Kingdom, where I have never been.
To my understanding working at American non-profits, however, corporations are most helpful as a liability shield when they are clearly distinct entities, with distinct goals, and distinct decision making. In practice, that means having multiple people, writing some sort of charter / statement of purpose, and having quarterly meetings of a board of directors with quorums where notes are written and votes are taken. This can all be a fair bit of work, where before nothing was required.
In addition to the "you're not fooling anyone" bit about piercing the corporate veil that's already well-addressed, you missed provisions of the OSA.
There's a requirement to name a senior manager: https://www.legislation.gov.uk/ukpga/2023/50/section/103
There's personal liability attached to being the named senior manager: https://www.legislation.gov.uk/ukpga/2023/50/section/110
Other nearby sections have additional personal liabilities. Like Sec 109 (5) (a) probably criminalizes your exact suggested response of walking away from Ofcom's inquiries: https://www.legislation.gov.uk/ukpga/2023/50/section/109 It depends on the legal definition of "permits the suppression of... any information required". We'd have to hire a UK lawyer for a confident answer.
All this is a couple sentences in the law. The law is 250 pages long. Ofcom's guidance was rounding 3,000 pages the last time I counted.
If you want to understand the OSA, I think the most accessible and valid writing available is by Neil Brown: https://onlinesafetyact.co.uk/ There's a lot developing as Ofcom continues to publish new rules and ignore questions, so I suggest reading the 'Replies' tab of his fediverse account.
"There's personal liability attached to being the named senior manager ..."
Thank you - that's a missing piece that helps.
"In addition to the "you're not fooling anyone" bit ..."
I don't suggest a corporate veil as a ruse - it's a tool that has a function and I think this is certainly it.
My sense is that enforcement for small operators is unlikely but the potential liabilities skew the risk dramatically. Pointing the initial enforcement at a corporate entity could change that risk assessment.
For those who do not know, Peter (pushcx) operates Lobste.rs, and even though he and the website is US-based, it looks like there will be repercussions too for them (basically geoblocking UK, for reference see https://news.ycombinator.com/item?id=43152178)