Up to ImcUk
There seems to be a emerging strategy.
- Get a 1U server NOW at riseup where we don't need to set up a legal body and make this the live production server asap. We do have the 1.5k needed for this.
- Get a dual opteron server NOW and build it even though it won't be live yet. This to have the setup ready for the moment we have sorted a legal body for a hosting contract at Calyx or elsewhere. Once the contracts are sorted, make this the live server as it's the more powerful box, and use the riseup one above for failback. We do have the 4k needed for this.
- Continue the discussion about setting up a legal body in the UK or elsewhere and also continue exploring what might be possible with GreenNet / Poptel.
See also: UkServerProcess
Table of content:
Offensive legal structure: for the IMC to take legal action
Originally this section refered to Indymedia needing to associate with legal entities, (and possibly become one) in order to take legal action over the ahimsa case. However it turns out that this is not possible since "An unincorporated body has no legal personality.It cannot therefore ... sue, or be sued in its name." (Anson's Law of Contract p233). Any legal action has, therefore, to be taken by individuals. There is a possibility that they can do so jointly, but I am unable to provide an answer to this question.1
. If UK IMC wished to be in a position to take legal action, in its own name, in the future, it needs to become a incoporated body e.g. A limited company, co-op or an incorporated charity.
Defensive legal structure: To defend imc from legal action
Also UK IMC is planning to get it's own servers for the first time and there is a consensus that individual techies having their names on the hosting contracts is not good, so is a legal body needed to sign this contract? - Yes , in the sense that a legal body eg a limited company, co-op, some (incorpotated) charities has 'legal personality'
i.e. it has the equivalence of a real person and can hold contracts in its own right. ("Since the passing of the Coporate Bodies' Act 1960 a corporation can, in general, contract in the same manner as any natural person of full age and capacity" _Anson's Law of Contract p232)
However it is possible to enter into a contract collectively as a voluntary association; in this case the members hold the contract between them, governed by the contract that binds them together - i.e. their membership of that organisation goverened by its constitution. However it is the members that hold the contract between them, not the organisation. 2
so any legal action would involve individuals not the organisation.3
There are so far two possible ways that have been suggested (and of course the suggestion to just keep on going without engaging in the legal process at all, but if this was followed it would again be individual techies with their names on the contracts for servers...) N.B. A third suggestion has now be added which has elements of both of these.:
1. Indymedia.org.uk constitutes itself. This could, of course, be as a group of volunteers,( i.e an unincorporated association) but it may make sense to have an incorporated legal body as a focus point of collective responsibility to protect the lives of those who volunteer to make Indymedia.org.uk happen. The idea is that a legal body, such as a workers' co-operative or limited company would be officially responsible if legal action is taken against Indymedia.org.uk and not
individual volunteers. And that this new legal constitution of Indymedia.org.uk would be able to take action against for instance a hosting company breaching a contract.
2. Create with other interested groups a legal support organisation. A legal body in support of imc rather than making imc a legal body itself. For example a cooperative or a charity with the purpose to support alternative media internet services, or to support community media or similar.
3. As a third option we could constitute UK IMC as an unincorporated association(s) then create a separate legal body such as a limited company or co-operative which would own the server, hold contracts etc. This would be wholly owned by members of the association bound by contract to the terms of the constitution of that association.
So where do we go from here, if at all
This section refers to the structure of the legal body no matter if it is Indymedia.org.uk or IndyLaw
background info: Wikipedia
; Radical Routes
intro to co-ops
; Fourth Sector
A whole new twikki page has been set up to explore the possibilites for a independent media hosting co-operative ImcUKcoop
Co-operatives are democratic structures run on the basis of one member, one vote. They are open to all (though they have the power to veto new members). They confer limited liability on their members (Liability is limited to the value of the (normally) \xA31 share members receive on joining. Co-ops are able to receive donations. It is normally necessary to appoint a secretary and treasurer as a minimum, however co-ops can run with out a management committee - the general meeting normally being the decision body in that case. There are examples of co-ops whose rules allow them to make decisions by electronic means such as mailing lists etc.
As far as their legal structure go they fall into two categories: Co-operatives registered as companies limited by guarantee under the Companies Acts 1985 and 1989 and co-operatives registered under the Industrial & Provident Societies Acts 1965-78. The former is easier to do, registering under the latter require proving you are a "bona-fide co-op" See Choosing an appropriate model - Coperatives UK Co-operatives UK model rules
- what would be the advantages of a charity vs Ltd? Would the charity commission register a legal body in support of projects like Indymedia?
- Purpose: To collect donations for servers. Protecting and supporting people who run servers.
- Pro: A charity for educational purposes could support indymedia. Such a charity could empower communities to achieve computer literacy and make their own media. Donations would be tax free.
- Contra: Complying to the demands of the charity comission can be a very tiresome process, involving lots of admin for every action taken.
Charities face strict rules about engaging in political activity<sup4 and campaigning5
Groups set up for a Political Purpose6
are forbidden from becoming charites. However charities may engage in campaigning or political activity in futherance of their Charitable Purposes as long as they do not become its dominant means of doing so.
The situation regarding Indymedia and any supporting organisations is likely to be an interesting one. Arguably we are not engaging in Political Activity, rather we are providing open access publishing for the public good. However some things we do (Front paging springs to mind) are much closer to/may constitute political activity, and questions will arise because our services are used for political activity and are intended to be used in this way. A supporting organisation could have as its aim supporting open publishing for the public good, and then allow these facilities to be used by Indymedia. It might however run into difficulties if it could only be used by Indymedia; if it was open to other non-political publisihing projects it might be a different situation. It would be in a different position than just supporting Indymdia however.
Charities are run by trustees who are not allowed to benefit from the charity and face strict rules over conflicts of interest. Charity Commision FAQ
NB Not all charities have to be registered. According to the charity commisions website http://www.charity-commission.gov.uk/registration/ccreg.asp
those that do not have to:
- Do not have an annual income over \xA31000 and
- Do not have use of land or buildings and
- Do not have any permanent endowment (permanent endowment is capital which cannot be spent like income)
There is not a single type of organisation called as charity, rather there are varying organsiations (including lLimited Companies) that have charitable purposes and are registered as such.
Indymedia Network Services
- set up a limited company
for providing network services for independant media, this company could have it's name on the contracts with the ISP's for hosting servers and therefore it would attract the legal flak. All the people who set it up could be equal partners. This structure need not be bound by rules that apply to charities so it would probably allow greater freedom than them.
- Purpose: Protecting and supporting people who run servers (or mirrors?)
- Pro: Take away the legal flak from indymedia. Able to take legal action. Confers limited liability.
- Contra: There are a lot of obligations in running a company e.g. Directors names and addreses have to be registered at Companies House. In their conventional form they are hierarichical/not democratic - normally a Limited Company has a board of Directors and voting is on a one share, one vote basis. (see voluntary associations below)
N.B. Both Co-operatives and Charities can be Companies Limited by Guarantee. In the case of the former it is an esaier route into incorporation than registering under the Industrial & Provident Societies Acts. In the case of the latter it makes the 'legal personalities' and enables them to own property and hold contracts in thier own rights.
These are known as 'unincorporated associations'
in legal terms. A voluntary association is a group of individuals
bound together by a contract between them. The form of contract between them is normally that of a written constiution, however it does not necessarily have to be so, in certain circumstances even a verbal contract is sufficient. It does not constitute a separate legal body and does not grant limited liability.
This form should not be dismissed out of hand, because of these limitations, however. Because it is governed by contract a voluntary association has a large degree of choice over how to constitute itself8
- it should be possible to come up with a constitution that mandates a non-hierarchical structure, where decisions are made by consensus etc9
. It should be noted that UK IMC is already
a voluntary association albeit one without a written constitution.
This could lead to the following scenario. We set up a separate legal body in the form of a company limited by guarantee (co-operative or otherwise) owned by a group of individuals as an unincoporated body (or bodies10
so that they are bound by contract to obey the its constitution e.g. all decisions regarding that company would have to be made by consensus and members of the association would be obliged to sell their shares in the company to other members of the association if they left it. This would seem to solve the problem of creatng a separate body and therfore hierarchy. However it would still leave the way for somebody to take legal actoin (jointly) against individuals/members of the association. I think it is more likely that action would be taken against the company - it is a clearer target and as owner of the server/holder of the contract I would have thougt that it, legally, was the publisher.
Offshore Company Trust
Would there be any advantages to having an offshore company. Legal? Tax? Or would the costs be prohibitive?
What do other IMC's do?
NL has a legal body, 'friends of indymedia', UCIMC is set up as a legal body in the US, Indymedia Ireland
has an Independent Media Support Group. What can we learn from these (and other?) examples?
Opinions and Ideas
Before deciding on a stucture we need FIRST to agree that becomming a legal body is a desirable course of action. There is also the case of the contracts for future servers to consider - who is going to have their name on the contract?
I think that there are strong arguments that becoming a legal body will make it easier for people to take legal action against IMC, and therefore it would attract legal action.
If UK IMC doesn't have a legal body, then when someone objects to content on the site and takes legal action, it will be against the ISPs providing the hosting. And then they will pass this onto the people running the mirrors, and the mirror admins often can't afford to get into legal battles. So content is removed by them — if indymedia isn't prepared to engage in legal action to defend content on the web site then don't expect anyone running a mirror of the site to do so either...
IMHO by becoming a legal body we are legitimising 'legal process' and implicitly the state as arbiter of what is 'just'. A legal body also needs 'trustees' or 'members' or a 'board' or some other closed group of people who are 'more' responsible for the actions of that organisation. In other words what we would create would be a hierarchy. This not need be necessarily so - I have tried to include solutions to this above (TallPaul
If we can get say 50-60 individuals mirroring content worldwide in different legal jurisdictions then that is going to be such a costly and complex legal nightmare for anyone to pursue, as for them not to bother. However at the moment all the mirrors apart from one are in the UK, and mirror admins are removing content when they get legal threats.
J. Beatson, Anson's Law of Contract 28th Ed
: Oxford Universtiy Press, Oxford, 2002
Todd, Paul & Lowrie, Sarah Textbook on Trusts 5th Ed
: Blackstone Press, London,2000
- author of this revision of this section.
2. cf the following passage talking about unincorporated associations and property
"Unincorporated have no legal personality and cannot hold property themselves...
The usual analysis ![for members' clubs] is that the present members hold the club property absolutely, subject to their contractual
rights and dutites arising from membership." (Todd & Lowrie p46)
3. "An unincorporated body has no legal personality. It cannot therefore contract, or sue, or be sued in its name. But a contract which purports to have been entered into, by or with an unincoporated body is not necessarilt invalid. The person or persons who actually made the contract, for example, the secretary or commitee of a club, may br held to have contracted personally and be presonally liable on the contract. Further, under the rules of agency, they may be held to have contracted on behalf of members of the association, and in certain circumstances, a representative action may be brought against one or more of the members...as representing the others" (Anson's Law of Contract p233)
4. Political Activity is defined as "any activity that is directed at securing, or opposing, any change in the law or in the policy or decisions of central government or local authorities, whether in this country or abroad".
5. Campaigning is defined as "
- public awareness raising and education on a particular issue;
- influencing and changing public attitudes;
- and political activities which are intended to influence Government policy or legislation, and which may involve contact with political parties."
6. Political Purpose is defined as "
- furthering the interests of any political party;
- or securing, or opposing, any change in the law or in the policy or decisions of central government or local authorities, whether in this country or abroad".
7. "Charitable purposes are characterised by a desire to benefit others for the public good; this is known as public benefit. To be a charity, all purposes of an organisation must be exclusively charitable; a charity cannot have some purposes which are charitable as well as others which are not."
8. As long as it is in compliance with the law.
9. It would require some careful wording, and would have to allow for situations where consensus could not be reached (in this case it could revert to majority voting on a one meber one vote basis or any proposal couldsimply fail to be carried) but that does not mean its not possible.
10. I am thinking here of the individual Kollectives as individual voluntary associations. The Confederation of Co-operative Housing is a co-operative company limited by guarantee that has a demoncratic, federated structure that might form the basis of something we could adopt to reflect the fact that UK-IMC is made up of different collectivess. CCH's members are housing co-ops and federations of housing co-ops. See http://www.cch.coop/cch/about.html http://www.cch.coop/cch/voting.html http://www.cch.coop/docs/cch-articles_of_assoc.doc
Other organisations attempting to grapple with similar issues.
(odd messages in list archive eg AGM proposals)
- 04 Nov 2004
- 04 Nov 2004
- 04 Nov 2004 added suggestion from list to create a legal support group
- 06 Nov 2004 added imc ireland and stuff about charities
- 08 Nov 2004 added arguments against engaging in litislative process or adopting legal structure.
- 10 Nov 2004 Added notes on Vountary associations, legal entities and hierachies etc. -- MayleR
- 14 Nov 2004 Added ImcUKcoop
page to help draft a proposal
- 15 Nov 2004 added some pros and cons. Wondering if we should move the thoughts and discussions to something like Uk Legal Constitution Debate?
- 18 Nov 2004 added opinion on legal structures and ahimsa case Added notes on co-ops and charities NB .This work is ongoing, covering legal structures. Its incomplete at the momentand will be added to later . (I've got to end her efor the day as my computer is needed elsewhere)
- 19 Nov 2004 Substantially rewrote first section and added notes on the ability of coporated and unincorporated bodies to be involved in legal action. This clarifies/corrects my mail to imc-uk-process on this matter. Replaced legal entity with legal body through out. Removed sections on Temporary and Surrogate Legal structures and related parts (actually juast commented out). These no longer make sense in the light of the quote form Anson's Law of Contract and my earlier point (removed in this revision) that a body which did not exist at the time (of the thing that gave rise the legal action could have no interest in a legal action and therfore could not take part in it. Added notes on Voluntary Associations. Added noteds on co-ops and legal structures. Tidied it up. I hope to add some more stuff on trusts at a later date (when I've finished going through this fat legal text book on trusts I now have sitting on my desk...]
- 07 Dec 2004 added emerging strategy
- 08 Feb 2005 specified emerging strategy now that we have most funds
- 08 Feb 2005 punbctuation, spelling, grammar - no changes to the meaning