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this post was submitted on 24 Jun 2023
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Technology
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"Illegal" is a harsh term, I'd rather say "legally naive". There's no TOS anywhere saying things like "you give us the right to publish the comments you enter" which would clarify things but if you were to take an ordinary instance to court, you'd probably be thrown out with reference to you implicitly agreeing to have your comments published by, well, writing and submitting them. Licenses are ruled by contracts and contracts don't necessarily need written form.
Meta is a whole another thing, though, because now we're not only talking publishing, but straight commercial exploitation of your content. There's no equability to be seen anywhere, meta doesn't contribute to the maintenance of your home instance, it straight-up leeches your content to put it next to ads. An implicit license doesn't suffice for that, a written one might not even (because no equability), that's why all the corps have TOS.
If you post a comment on a publicly accessable page, there is an expectation that what you've posted will also be public. That's implied consent and doesn't require signing a contract.
In fact, the EU generally takes the position that a Terms of Service agreement is pretty much worthless. Nobody actually reads those documents, so the terms in them cannot be enforced. A TOS clarifies what a company/organisation will do with user entered content, but in terms of what can legally be done with the data the TOS doesn't apply.