eh, I always see this disclaimer, so even though it absolutely goes without saying - none of this is legal advice, it is just a bored law student talking about something interesting, and much of this has a high likelihood to be incorrect, don't listen to me for any reason other than entertainment pleasepleasepleasepleasepleasepleasepleasepleasepl
so, I was reading the Discord terms of service when I noticed the "don't do anything else that's illegal"
and like, "'anything else that's illegal' means 'anything else that's illegal'" is just... really silly - this is completely unenforceable
so, how do we define illegality? for most legal systems its really easy, all crimes are statutory in most of them, and actually beyond that, most of them have criminal codes, so it can be easily resolved for a country like Germany, or France, or Italy by saying "for the purposes of this document, 'anything else that's illegal' refers to any offense listed in the criminal code of the user's country"
this doesn't *really* work, though, because many countries, particularly those in common law systems, such as England and Wales, the USA, or Australia, do not have criminal codes (though, there are some common law systems with criminal codes, like Canada (maybe including quebec? honestly don't know, it doesn't use the same legal system as elsewhere in Canada), these are rare), common law's law based on precedent means that a good deal of crimes aren't even statutory to any real extent (oh, just for the sake of it, and me having this knowledge, Scotland doesn't have a criminal code - this is just relevant because it's both a civil and common law system, so ye, unsure about any other hybrid system (oh, Quebec is back, hi Quebec))
this term remains unenforceable, really, like, what constitutes illegality just isn't defined, so, what would some alternatives be? (all of these will be relevant to Scotland, because I know Scotland best)
Option 1: For the purposes of this document, "anything else that is illegal" refers to statutory offenses not otherwise described in this document
this doesn't include all crimes, but it includes a lot of the most serious crimes, such as not reporting how many female salmon you have in your fish farm, not keeping records on fish sales for 3 years, or catching a sea fish that are the wrong size (I tried to find specifics, but Marine and Coastal Access Act 2009 was very vague and I really don't want to keep looking through fish related legislation) - I think this is probably my preferred solution, but like, it really does not apply to every law, common law is a huge aspect of how criminality is described in Scotland - notably, the writings of Baron Hume are excluded, which like, until fairly recently was the source of crimes as serious as rape and serious sexual assault, so like, yeah, it's definitely not a perfect solution, there's probably other cases like that
Option 2: For the purposes of this document, "anything else that is illegal" refers to any behaviour that Discord considers to be illegal
this works, but it gives Discord uh... a lot of power that I wouldn't want it to have - surprised this *isn't* what Discord says, but like, I'm glad it isn't
Option 3: For the purposes of this document, "anything else that is illegal" refers to <list of things that are considered illegal>
this also works, but I think it's weaker and less effective than option 1, inclusio unius est exclusio alterius, after all, if you don't include something like "not informing customers as to the origin of fish sold", then you are impliedly giving permission to users that they are allowed to do that, so I really don't like this solution
I like this solution 2, sure it's unenforceable, but like, so are arbitration clauses and those are everywhere - even if you can't enforce a term in a contract, it's still a term in a contract, and people aren't just going to breach it because they can, it's like, fine and stuff
anyways, that was fun, bye
