Defamation page 1
Magicziggy
25th December 2011, 09:48 PM
As an Australian staff member, I could be sued in a South Australian court under our defamation laws should someone decide they have been defamed.
A brief trawl of the law leaves me unconcerned by this.
Some points I've noted.
1) Australian states and territories have unified the defamation laws although there remain differences in interpretation and available defenses.
2. Definition
"Defamation is the publication of words or images to a person that damages the reputation of another ['slander' if spoken words, 'libel' if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action.
3. Available defenses
i) truth/ justification
In some jurisdictions this defense appears to require "in the public interest" to be attached. Ie simply publishing information because it is true is not necessarily a defense.
ii) fair comment
I think this characterizes many Internet debates. Honestly held opinions or criticism of matters of public interest would not be considered defamatory.
iii) consent - obvious
iv) triviality - no harm done in other words
v) innocent dissemination - applicable to re-publishers/re-distributors such as newsagents/book sellers, including potentially to ISPs/ICHs.
I'll omit the info about Clause 91(1) of the Broadcasting Services Act as it pertains to content hosted in Australia.
Conclusions
1) members should be aware of this in their own jurisdiction
2) staff should be aware of applicable laws in their own jurisdiction
3) I would like some reference to defamation / slander / libel in the sign up.
A brief trawl of the law leaves me unconcerned by this.
Some points I've noted.
1) Australian states and territories have unified the defamation laws although there remain differences in interpretation and available defenses.
2. Definition
"Defamation is the publication of words or images to a person that damages the reputation of another ['slander' if spoken words, 'libel' if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action.
3. Available defenses
i) truth/ justification
In some jurisdictions this defense appears to require "in the public interest" to be attached. Ie simply publishing information because it is true is not necessarily a defense.
ii) fair comment
I think this characterizes many Internet debates. Honestly held opinions or criticism of matters of public interest would not be considered defamatory.
iii) consent - obvious
iv) triviality - no harm done in other words
v) innocent dissemination - applicable to re-publishers/re-distributors such as newsagents/book sellers, including potentially to ISPs/ICHs.
I'll omit the info about Clause 91(1) of the Broadcasting Services Act as it pertains to content hosted in Australia.
Conclusions
1) members should be aware of this in their own jurisdiction
2) staff should be aware of applicable laws in their own jurisdiction
3) I would like some reference to defamation / slander / libel in the sign up.
Adenosine
25th December 2011, 11:00 PM
Relevant.
http://www.publishersaustralia.com.au/_webapp_822711/Risk_of_Defamation_1
http://www.overclockers.com.au/defamation.shtml
http://www.efa.org.au/2009/07/08/another-defamation-suit-zgeek-owner-sued-for-alleged-defamatory-forum-comments/ Follow the links at the bottom to find out what happened.
I like the Overclockers AU approach and think it should be added to our code.
http://www.publishersaustralia.com.au/_webapp_822711/Risk_of_Defamation_1
http://www.overclockers.com.au/defamation.shtml
http://www.efa.org.au/2009/07/08/another-defamation-suit-zgeek-owner-sued-for-alleged-defamatory-forum-comments/ Follow the links at the bottom to find out what happened.
I like the Overclockers AU approach and think it should be added to our code.
Magicziggy
25th December 2011, 11:27 PM
It is can of worms. Education and awareness is the key.
Hermit
26th December 2011, 01:06 AM
Thanks for the useful information, Magicziggy and Adenosine.
As unlikely as the chance of being sued for defamation and copyright infringements are, I find the risk unacceptable in a forum that is meant to be essentially unmoderated for me to be to be one of the publishers of the forum.
From one of Adenosine's link (http://www.publishersaustralia.com.au/_webapp_822711/Risk_of_Defamation_1):If somebody posts material on your website that infringes a third party’s rights (for example, if it is defamatory or infringes somebody’s copyright), the person who posted the material is likely to be liable for that infringement, however you are also likely to be liable. It is not a defence to argue that you did not create the material, or were unaware of it, as you were the publisher. In fact, the publisher may be a more attractive target for somebody looking to commence legal proceedings as they are easy to identify, and will often have deeper pockets than the individual who posted the material.
The article explicitly mentions online forums as being publishers, and the Gutnick precedent means that having the publication hosted overseas affords no legal immunity from being sued in Australia. It is also obvious that the outcome of the case means that owners of the outcome who live in any other country can be successfully sued from within Australia. If Dow Jones & Co has not found the legal and financial sources to defeat the suit against them, who can?
The authors' credentials cited at the bottom indicate indicate that the article is written by experts on this topic, not a mere expression of opinion.Kate Berry is a lawyer in the Technology, Media and Telecommunications (TMT) Group of ClarkeKann with Gray & Perkins in Sydney (www.clarkekann.com.au (http://www.clarkekann.com.au)). Peter Karcher is a partner in the TMT Group. ClarkeKann with Gray & Perkins’ clients include major media interests, amongst them publishers, pay-TV channels and content providers, advertising, marketing and IT companies. ClarkeKann with Gray & Perkins is Publishers Australia’s legal associate member.
As unlikely as the chance of being sued for defamation and copyright infringements are, I find the risk unacceptable in a forum that is meant to be essentially unmoderated for me to be to be one of the publishers of the forum.
From one of Adenosine's link (http://www.publishersaustralia.com.au/_webapp_822711/Risk_of_Defamation_1):If somebody posts material on your website that infringes a third party’s rights (for example, if it is defamatory or infringes somebody’s copyright), the person who posted the material is likely to be liable for that infringement, however you are also likely to be liable. It is not a defence to argue that you did not create the material, or were unaware of it, as you were the publisher. In fact, the publisher may be a more attractive target for somebody looking to commence legal proceedings as they are easy to identify, and will often have deeper pockets than the individual who posted the material.
The article explicitly mentions online forums as being publishers, and the Gutnick precedent means that having the publication hosted overseas affords no legal immunity from being sued in Australia. It is also obvious that the outcome of the case means that owners of the outcome who live in any other country can be successfully sued from within Australia. If Dow Jones & Co has not found the legal and financial sources to defeat the suit against them, who can?
The authors' credentials cited at the bottom indicate indicate that the article is written by experts on this topic, not a mere expression of opinion.Kate Berry is a lawyer in the Technology, Media and Telecommunications (TMT) Group of ClarkeKann with Gray & Perkins in Sydney (www.clarkekann.com.au (http://www.clarkekann.com.au)). Peter Karcher is a partner in the TMT Group. ClarkeKann with Gray & Perkins’ clients include major media interests, amongst them publishers, pay-TV channels and content providers, advertising, marketing and IT companies. ClarkeKann with Gray & Perkins is Publishers Australia’s legal associate member.
Magicziggy
26th December 2011, 04:00 AM
I didn't provide a link to where I sourced the info. Mainly because I'm phone posting and its painful.
Here it is:
http://www.efa.org.au/Issues/Censor/defamation.html
I do understand individual's concerns. There is a real risk .
My view is to educate ourselves about Australian defamation law, because it's the lowest common denominator, then be vigilant about defamatory posts.
Examples off the top of my head.
Richard Dawkins is a wanker- opinion - allowed
Richard Dawkins sucks cock. - Trivial non damaging unsubstantiated bollocks.
Richard Dawkins is embezzling funds from RDF - libelous - evidence or retract.
Richard Dawkins is screwing his secretary and here are the photos to prove it. - potential defamation under Australian law because of the grey area of "in the public interest"
Once we understand the nuances of the law, we need to guide members to resources that help them understand. I would recommend a specific thread for the issue. Maybe it should be flagged on sign up.
I still feel ok about the risk associated with being an Australian admin on the site.
Here it is:
http://www.efa.org.au/Issues/Censor/defamation.html
I do understand individual's concerns. There is a real risk .
My view is to educate ourselves about Australian defamation law, because it's the lowest common denominator, then be vigilant about defamatory posts.
Examples off the top of my head.
Richard Dawkins is a wanker- opinion - allowed
Richard Dawkins sucks cock. - Trivial non damaging unsubstantiated bollocks.
Richard Dawkins is embezzling funds from RDF - libelous - evidence or retract.
Richard Dawkins is screwing his secretary and here are the photos to prove it. - potential defamation under Australian law because of the grey area of "in the public interest"
Once we understand the nuances of the law, we need to guide members to resources that help them understand. I would recommend a specific thread for the issue. Maybe it should be flagged on sign up.
I still feel ok about the risk associated with being an Australian admin on the site.
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