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Defamation and Free Speech in the OCAU Forums

18-Jun-01, An article by James "Agg" Rolfe

Remember: I am not a lawyer and this is NOT legal advice!

We recently faced a serious problem in which some people claimed that they may have been defamed by comments which were posted by some other people on the OCAU forums. Despite the fact that we made it very clear in the site documentation that OCAU are not responsible for comments made by other people and indeed there is a section of the Broadcasting Services Act which seems specifically designed to protect Internet Content Hosts in our situation, they were threatening to sue us and forced us to obtain legal advice. This is a serious concern (and expense) for the operators of this website - and one reason why the OCAU forums have been down for so long.

The forums were one of the driving forces behind OCAU and we want to bring them back to their former glory. However, we won't do this unless people recognise and adhere to a few basic standards when posting comments on the OCAU forums:

  1. We have never and will not be censoring the forums or monitoring every post that appears. To check all messages is impossible for the people that run OCAU given the sheer volume of messages that appear almost constantly. Further, as we are not lawyers, we cannot reasonably be expected to know which messages are legally appropriate and which are not. In the majority of cases, there will be no way for us to tell if a message is comprised of entirely factual statements. Deleting all messages that are negative in any way would be a severe infringement upon the free expression of our contributors. Therefore, OCAU will in no way take any responsibility for comments you make on these forums.
  2. You are personally responsible for what you say on these forums. If you post a comment that might be defamatory, expect that someone will sue you personally for defamation! Think: Do you want to lose everything you own/ your parent's house over a comment you made on these forums?
  3. If you post a message about someone and they think that it may be defamatory, we will happily and fully comply with any court order requiring us to hand over everything we know about you and that post. If we didn't, we would likely be found in contempt of court which carries severe penalties including imprisonment - so don't think for a second we won't hand over any and all info we have. Remember, you are not anonymous on these forums! We log your IP address and connection time and if a court requires us to reveal that information, it can be used to link you to your ISP (they know who you really are).
  4. So what is defamation and what about free speech?
    1. These forums are hosted in Australia and there is no "right of freedom of speech" in Australia (except in relation to political speech: ie. comments about politicians and political parties). So forget everything you've seen on American legal dramas on TV - it just doesn't apply in Australia.
    2. Basically, you can be sued for defamation if you write a post that could lead a reasonable person to have a lower opinion of the reputation or honour of the person whom you are talking about in that post. Eg: Do NOT say that [Mr X/Company Y] is a liar, a thief, a cheat, a criminal, a scumbag, they ripped me off, they suck, they are dodgy, etc - anything you say must be based on facts you can prove in court.
    3. You are allowed to post messages which contain statements which you can prove in court are true. Therefore, we suggest that if you have critical or negative comments to make about a person, a product or a supplier, you limit your comments to a strict factual description of what happened. Eg: I ordered [insert product] from [insert name of person/store]. It [arrived broken/ never arrived/ wasn't what I ordered]. I have contacted them but received [no response/ unsatisfactory service]. Based upon this experience, I will not order from them in the future. Bear in mind that as per point 5 this is not legal advice - if you are considering posting a critical comment you should seek legal advice first. We take no responsibility for you relying on this statement. It is provided merely to alert you to the issue of defamation when criticising vendors. Use it at your own risk!
    4. If you are concerned that a message that you are considering posting to the OCAU forums may be defamatory in any way, you MUST seek your own legal advice before posting it on the forums. Don't ask us whether it would be defamatory or not - we are not lawyers!
    5. Think twice before you post a message. A defamatory message starts doing damage the instant it is posted.
    6. If you are in any doubt, don't post! Instead, take some time to chill out and think about what you want to say - you can communicate that you are disappointed with what someone has done to you without being defamatory. Ask a friend, ask your parents - ask a lawyer! Posting forum messages when you are angry or upset is never a good idea.
    7. If someone complains to us about a post that you have made that they consider defamatory, we will delete it as soon as we can - this is for YOUR protection.
    8. If you have a complaint or are concerned about a message you think may be defamatory, click the link "Report this post to an Administrator" link under the message.
    9. The Broadcasting Services Act provides a statutory defence for Internet Content Hosts against suits for subsidiary publication of defamatory materials. Therefore, if a person has a problem with the content of a post, their only remedy is to contact OCAU to ask that the post be removed. If they want to know the identity of the person who made the potentially defamatory post, they should apply to a NSW court for an order for OCAU to hand over whatever information OCAU has which could potentially be used to identify the person. They will have to pay all costs associated with that court order. Once OCAU receives such a court order, we will happily comply with it and then the person with the complaint is free to attempt to directly sue the person who actually made the post for defamation, at their own cost. OCAU will play no further part in the matter.

Remember: I am not a lawyer and this is NOT legal advice!

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