ANALYSIS |2Clix's withdrawal from a legal case against the founder broadband discussion forum Whirlpool might be welcome news, but leaves the legal status of Internet publishers just as murky as ever.
|Whirlpool founder Simon Wright: relieved the 2Clix action has been withdrawn, but still waiting for official confirmation to be filed at the Supreme Court of Queensland.
2Clix's withdrawal from a legal case against the founder broadband discussion forum Whirlpool might be welcome news, but leaves the legal status of Internet publishers just as murky as ever.
Ever since news of 2Clix's legal action against Whirlpool founder Simon Wright first broke, the general opinion has been that it was, at best, a massive miscalculation. 2Clix's suit, which sought to have two threads discussing the effectiveness of its products removed from the site, instead resulted in global publicity of those threads. Indeed, as I write this, those threads dominate the top five search results for '2Clix' on Google -- hardly a good outcome if you're seeking to minimise bad publicity.
A posting on Whirlpool confirmed that 2Clix, perhaps stunned by the massive online coverage its case generated, had issued instructions to its solicitors to discontinue the case. Whirlpool intends to offer refunds to the many people who have offered donations to help cover its legal costs, although even with an abandoned case these are likely to be quite considerable.
For Whirlpool founder Simon Wright, personally named in the original suit, the cancelled legal action will doubtless come as a considerable relief. However, for anyone operating an Internet discussion forum in Australia, the lack of action in this case leaves a legal situation that oscillates nastily between 'uncertain' and 'incredibly risky'.
To date, there hasn't been a case in Australia that has clarified whether site owners should be held responsible for comments posted by individuals on their sites. Most sensible operators (including the moderators at Whirlpool) try to cover themselves by including disclaimers against responsibility for individual comments, and by eliminating obviously offensive or illegal comments.
However, the status of such disclaimers has yet to be tested, and there are no over-arching guidelines about just what ought to be removed. Sure, it's pretty clear that a racist remark or a death threat probably ought to go, but what about sustained criticism of a product that the site operator knows nothing about? It could be a legitimate criticism, but it could be a personal vendetta.
One of the few successful defamation actions relating to the Internet in Australia falls into the latter category. In 2003, Dr Trevor Cullen won a case against William White, with the court finding that the latter had set up a series of web sites and made forum posts in an attempt to ruin Cullen's reputation as an academic. Even that was something of a minimal victory, as the finding (and its associated $95,000 in damages) couldn't effectively be enforced against White, a US citizen, but it does demonstrate that not all postings online should be taken at face value.
Eventually, these laws are bound to be tested more thoroughly. 2Clix used an 'injurious falsehood' suit because it was blocked from invoking defamation law as a company, but that doesn't mean that an individual named in a forum couldn't pursue such a line. A publisher might then try and use an 'innocent dissemination' argument, but the legal consensus seems to be that such a defence would be less effective if a complaint about the content had been reached. Much online discussion on this topic revolves around the notion of 'free speech', but that concept is largely irrelevant to the Australian situation.
A popular point of view on the Internet is that such problems are best resolved via community consensus -- that is, when something obviously stupid happens, the community will make its feelings known and resolve the issue democratically. In one notable example earlier this year, news aggregator Digg became swamped with postings after it started removing items relating to a leaked AACS encryption key, and the site's founders eventually backed down.
This was widely viewed as a victory for sensible behaviour online, but it isn't hard to also see it as an example of mob rule. Consider it this way: imagine that White had made one of his posts on Digg (or indeed on Whirlpool). Would the community have supported Cullen's right to take legal action regarding those remarks, or backed White despite the offensive content of his comments? It may have exercised sensible judgement, but it may have been more amused by the notion of reproducing the offending remarks on a picture of a kitten.
By standing firm in the 2Clix case, Whirlpool avoided Digg's reputational fracas, and demonstrated that it has won widespread community support through its even-handed approach, which includes encouraging companies that are complained about to respond. Not every site operator is likely to be as fortunate in the future.