IMPORTANT: Please read these T&Cs and return the signed form on page 4 to the
MASC Secretariat (see contact details at end of document) in order that you
may be added to BMA listservers.
BMA LISTSERVERS
Terms and Conditions Of Use
1.
The BMA
1.1
The BMA shall be entitled at any time in its absolute and exclusive discretion
to delete, remove or suspend the whole or any part of the listserver, or of any
response, or any information posted, without notice and without incurring any
liability.
1.2
The BMA shall be entitled at any time at its absolute and exclusive discretion
to restrict or suspend or cancel the access of any user to the listserver,
without notice and without incurring any liability.
1.3
The opinions are the opinions of the users of the listserver, and do not
represent any advice or opinions of the BMA. Any recommendation or other
information within the listserver is followed at the users own risk and the BMA
does not warrant the accuracy of any of the material posted.
2.
Users
2.1
As a user, you are responsible for the accuracy and completeness of any content
that you post.
2.2
You may use the listserver only to post comments, messages and material that is
in the BMA’s opinion proper and appropriate to the listserver. Without limiting
the generality of the foregoing you shall not do any of the following:
a. defame, abuse, harass, threaten, impersonate any person or entity or otherwise
violate the legal rights of others
b. publish, post, distribute or disseminate any material which is obscene,
indecent or unlawful
c. advertise or offer to sell any goods or services, or conduct or forward
personal surveys, contests or chain letters
d. knowingly upload files that contain software or other material protected by
intellectual property laws (or by rights of confidentiality or privacy) unless
you own or control the rights thereto or have received all necessary consents
e. knowingly upload files that contain viruses, corrupted files, or any other
similar software or programs that may damage the operation of the BMA's or any
other party's computer
f. delete any author attributions, legal notices or proprietary designations or
labels in any file that is uploaded
g. falsify the origin or source of any content or other material (including
software contained in a filethat is uploaded)
h. disclose any confidential information contained on the listserver to any
external third party (including, without limitation, to the media). For the
purpose of these terms and conditions of use, all information contained on the
listserver shall be regarded as confidential unless expressly stated to the
contrary.
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2.3
If you discover any content on the listserver which you consider breaches any
of these terms, or is otherwise unacceptable, you must in the first instance
notify the committee secretary, committee chairman or other person nominated
under the committee’s own protocol who will initiate the committee’s processes
for local resolution. All concerns that are not immediately resolved must be
notified to Jonathan Waters, Group Director of Legal Services, at the BMA.
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3.
General
3.1
You agree that the BMA may access, preserve, and disclose any content posted by
you in order to: (a) comply with any legal process; (b) enforce these terms and
conditions of use; (c) respond to claims that any content posted on the
listserver violates the rights of third parties; or (d) protect the rights,
property, or personal safety of the BMA and other users of the listserver and the
public.
3.2
The BMA excludes all and any liability for any loss, damages or expenses
incurred or suffered by you (including consequential loss which shall include but
not be limited to loss of profit, loss of anticipated savings and other economic
loss) as a direct or indirect result of an act or omission on the part of the BMA
in relation to these terms and conditions of use.
3.3
Nothing within these conditions operates so as to exclude, limit or restrict the
liability of the BMA for death or personal injury.
3.4
The BMA reserves the right to change these terms and conditions of use at any
time and without notice.
3.5
The interpretation, construction, effect and enforceability of this agreement
shall be governed by English Law, and you and the BMA agree to submit to the
exclusive jurisdiction of the English courts for the determination of disputes.
3.6 By sending an email to the committee secretary to confirm your acceptance of
these terms and conditions, you confirm that you accept and agree to abide by
these terms and conditions of use (as updated by the BMA from time to time). If
you do not agree to these terms and conditions of use, you should notify the
committee secretary accordingly, and you may not use the listserver.
February 2007 (updated March 2009)
Listservers: terms and conditions of use
Background information for committees
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1.1
INTRODUCTION
At its meeting on 18 April 2007, Council decided that terms and conditions of
use for BMA listservers be rolled out for all BMA listservers and that those
who refuse to accept them be removed from access to the relevant listserver.
1.2
The purpose of this paper is to set out the reasons why Terms and Conditions
are necessary.
1.3
There have been a number of recent postings on certain BMA listservers which
have been potentially damaging and actionable against both the BMA and the
individuals involved. In addition, it has been alleged that the passing on of
confidential material to those not on the listserver has occurred.
1.4
In January 2007, the Senior Managers Group (SMG) decided to undertake a general
review of the listservers. Amongst the problems identified, it was found that
a number of the principal listservers (such as Council and CCSC) did not have
Terms and Conditions of use (‘Terms and Conditions’) whereas, in the case of
one which did (JDC), the terms and conditions could benefit from re-drafting.
Following a potentially serious incident involving the CCSC listserver, SMG
decided, that, in order to reduce the BMA’s risk exposure, it would be
advisable to implement Terms and Conditions for CCSC and, thereafter, for
Council and all other listservers.
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1.5
As at 22 March 2007, there were 106 active BMA listservers, of which 73 related
to just 5 branch of practice committees (General Practitioners 25, Consultants
22, Public Health 15, Junior Doctors/Medical Students 11).
2.
LEGAL RISKS ASSOCIATED WITH LISTSERVER USE
2.1
There is a growing trend towards taking legal action arising from electronic
postings. The main risk is that of defamation, principally, libel.
2.2
Defamation occurs when there is a publication, to a third party, of an untrue
imputation against the reputation of an individual, company or firm that
undermines that reputation:“in the eyes of right thinking members of society generally, by exposing
the victim to hatred, contempt or ridicule”.
2.3
As a general rule, in law, the BMA is liable for its officers and, depending
on the circumstances, for its members, acting in the course of their BMA
duties.
2.4
There are two types of defamation – slander and libel.
2.5
Slander is an oral publication (for example, words spoken in the course of a
debate), whereas libel is a written one (although it can also occur in signs,
works of art and cartoons). Publication of a libel in an electronic form –
such as on listservers, message boards, e-mails and websites is treated no
differently from any other type of written publication (for example, in a
newspaper or letter).
2.6
The remedy for defamation is an injunction and/or damages. An injunction
prevents a publication whereas damages compensates the victim for any ‘hurt’
sustained (it should be noted, however, that a victim does not actually have to
prove any financial loss). A claim for defamation can only be heard in the
High Court (and its equivalent in Scotland/Northern Ireland) and legal costs
are substantial.
2.7
The defences available to a defamation claim include justification (i.e. that
the publication is true), fair comment (an honest – but not a malicious belief
in the truth of an opinion concerning a matter in the public interest) and
privilege (such as things said in the course of court proceedings).
2.8
Applied specifically to listservers, legal proceedings could be brought against
both the BMA (as the publisher of a libel), and/or the ‘user’ who posted the
libel and/or any third party, to whom the libel is ‘published’ and who
subsequently makes it available to anyone else.
2.9
The BMA has libel insurance which provides cover of £5 million in aggregate in
any one policy year (subject to the terms, conditions and exclusions of the
policy) There is an excess of £20,000 which means that, in practice, there is
a financial exposure each and every time that a claim is made.
2.10
The BMA’s libel Insurance Policy requires that, for cover to be available, the
BMA has to have in place Terms and Conditions which those individuals using the
listservers have agreed to. The BMA’s insurers have seen, and are happy with,
the Terms and Conditions.
2.11
There are other legal risks which, in summary, include:a) DISCRIMINATION – Legal action could be taken, against the ‘user’ and/or
the BMA, in relation to statements which are discriminatory. The law
prohibits discrimination on specified grounds such as:- race, religious
belief, sex, age, disability, religion and sexual orientation.
There
are 2 types of discrimination – direct and indirect. Direct is rare and
consists of an individual being treated less favourably on prohibited
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grounds (for example, because of race). Indirect occurs when the
application of a seemingly neutral requirement has the effect of
adversely affecting an individual from a particular group.
b) PROTECTION FROM HARASSMENT – Harassment is unwanted conduct that violates
a person’s dignity or creates (amongst other things) an intimidating or
offensive environment for that person. Harassment can be occasioned
through electronic communications. If the BMA allowed a ‘user’ to harass
another ‘user’, (by, for example, not intervening to remove a
posting/remove a user from the listserver) then there may be both civil
and criminal liability under the Protection from Harassment Act 1997.
This is a relatively new area of law and is developing quickly.
c) BREACH OF COPYRIGHT – Although rare, in practice, actions for breach of
copyright occasionally arise. The remedy is an injunction – to prevent
the use of copyrighted material and/or damages for any financial loss
sustained by the copyright owner.
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3.
OTHER RISKS
3.1
Listservers, like other forms of electronic communication, are not secure. The
disclosure of information, from a listserver, to a third party, could cause the
BMA severe embarrassment, reputational damage or weaken its position (for
example, in the context of confidential information ‘leaked’ during the course
of a negotiation). In addition, if some of the more light-hearted exchanges
were to be published elsewhere, the BMA and the authors could be exposed to
ridicule.
3.2
The Terms and Conditions are not intended to stifle the democratic process
and/or genuine debate. Indeed, in our view, their very existence encourages
seemly debate and the express prohibition on the disclosure of confidential
information encourages greater openness and confidence in the integrity of the
listserver. It is not conducive to a frank and vigorous exchange of views,
whilst positions are being debated and formed, if participants have a concern
that confidential dialogue may find its way its way into the public domain.
4.
THE BMA TERMS AND CONDITIONS
4.1
The Terms and Conditions of use are based on an established, best practice,
legal precedent and are, in fact, ‘softer’ than those adopted by many other
organisations - such as Doctors.Net.
5.
CONCLUSION
5.1
It is important that individual users take responsibility for their postings
and, accordingly, the Terms and Conditions do need to be agreed separately, by
each user.
5.2
Our insurers will not provide cover if the Terms and Conditions are not
implemented.
6.3
We believe that it is the best interests of the BMA that the Terms and
Conditions be implemented for all listservers. If they are not, the BMA is
unnecessarily exposed to a number of avoidable risks.
Tony Bourne/Jonathan Waters/Jacqueline Foukas
1 May 2007
To be signed:
I agree that I have read and agree to abide by the BMA Listserver Terms and Conditions
of Use set out above:
Signed........................................................................
Name (printed):..........................................................
Date:..........................................................................
Please sign and return a copy of this form to the MASC secretariat via any of the
following methods:

Scan or photograph your signed form (i.e. page 4 only) and email the PDF/picture
file to info.masc@bma.org.uk
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
Post your form (i.e. page 4 only) to Winifred Annan, MASC, British Medical
Association, BMA House, Tavistock Square, London, WC1H 9JP
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