Firm sues forum to silence critics

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In a move that could set a nasty precedent for Australian website operators and their users, a software firm is suing a community website over comments published on its message board.
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But Whirlpool isn't taking any chances, asking its users in a statement published on the website to "refrain from doing anything that might expose Simon to contempt of court such as making statements that prejudge the outcome of the case".
http://www.smh.com.au/news/web/whirl...276778252.html

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And comments from the owner of another very large IT forum that I sometimes frequent called OCAU:

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That goes for comments here too. Anyway, I obviously don't have any more idea about the specifics of the case than you do, but I imagine every forum operator in Australia is paying close attention to this one. I've already emailed Simon to express my support.

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The threads:
http://forums.whirlpool.net.au/forum...s.cfm?t=479484
http://forums.whirlpool.net.au/forum...s.cfm?t=628356
Digg
Could set a nasty precedent for free speech on forums.
Simon Wright is accepting donations:
http://whirlpool.net.au/faq-wp.cfm#4.11

Not the first time, this great car forum that I use to frequent was closed last year due to some people saying some things that upset someone.

http://www.cruizin.com.au/newforum/category-view.asp

Wow that's scary.:oo:

Whirlpool is huge. The biggest in Australia along with OCAU. I'd hate to see that when I log on. :(

I have already bailed out 3 members (verbally) who just had to denigrate businesses or other. One stood to lose his home and everything he owned. In the last few weeks I saved a long time member dia strife. He doesn't even know it and has left the forums of his own accord. The actions of a handful of people was what prompted THIS STATEMENT over a year ago.

I will not be sued, neither will any of my Mods or Admins. I will see to it that the person making the statements bears the full force of any law suit and that they are never heard of again on these forums. We will not take the fall for anyone.

In most instances anything that could be of a slanderous or any other legal nature is pulled off here in pretty quick time anyway and the poster warned and in the most dia case banned.

Good idea for all to read the above link, just so you know what to expect.

Cheers - Neil

onya Neil :)

Should they be able to intimidate the owner of the forums for not removing content? Some forum owners might just buckle and it's good to see that he's getting so much support from all over the web.

I haven't read right through it all, but I gather that the case is all about stifling negative comment, otherwise anything slanderous would already have been removed.

From all the comments that I've read so far, this software company has just shot itself in the foot by trying to sue a community based forum owner, and not the people making the comments. Word gets around and it looks like no one in the know is going to buy their product anymore.


From what I can gather, they're racking up donations and they'll probably be able to get pro-bono defence so they're asking people to hold off on donations at the moment.

I'm not surprised at the legal action being taken and I would be surprised if they are not succesful. There is no such thing as free speech on forums as we are all governed by laws of libel.

What surprises me is that some companies that always get criticised (often unfairly IMO) on this board haven't done the same.


Peter.

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Originally Posted by Sturdee

There is no such thing as free speech on forums as we are all governed by laws of libel.

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There is a difference between libel and a forum member saying "I used it and I had nothing but problems" or another saying "I don't think it will do what I want."

By definition, Libel is a false claim. The first forum member may be stating a fact and the second stating an opinion. Trying to lump them altogether as "libel" is perilously close to censorship.

Having followed up the links provided, I'd be surprised if the lawsuit did succeed! I'd be even more surprised if Clix was awarded the claimed loss of income as many of the posters stated that they had bought the SW and were very unhappy with it!

I am not an accountant or an IT peson and I just read the entirity of those threads, quite interesting. I would guess from reading the latest that there are other things going on in the background that relate to this company that may be in play. I for one was surprised that they were only asking for $150 000 in damages, seems pretty low considering.

The law is the the law whether we agree with it or ridicule it.

Perhaps companies that can't take criticism should make it clear that they also don't want positive comments.

If an individual is making negative comments about an opposition company or a company associated with their enemy then the malicious individual should be sued - they are pesty trouble makers.

I think if someone has had a bad experience with a company and has unsuccessfully tried to resolve that problem with that company then the company should bear the consequences of their inability to resolve the problem.

Will companies try to ban organisations like Choice? Close down governemnt departments like Consumer Affairs? Perhaps they might want Australian and International Standards to become optional because non compliant products have to be recalled and that hurts in the $$$$$$ department.

I don't agree with the law on this subject however that doesn't make me immune to being sued if I choose to break this law.

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Originally Posted by Wood Borer

The law is the the law whether we agree with it or ridicule it.

Perhaps companies that can't take criticism should make it clear that they also don't want positive comments.

If an individual is making negative comments about an opposition company or a company associated with their enemy then the malicious individual should be sued - they are pesty trouble makers.

I think if someone has had a bad experience with a company and has unsuccessfully tried to resolve that problem with that company then the company should bear the consequences of their inability to resolve the problem.

Will companies try to ban organisations like Choice? Close down governemnt departments like Consumer Affairs? Perhaps they might want Australian and International Standards to become optional because non compliant products have to be recalled and that hurts in the $$$$$$ department.

I don't agree with the law on this subject however that doesn't make me immune to being sued if I choose to break this law.

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Telstra and the ACCC would be another example of this tension. There are changes coming into the Trade Practises Act that will ban secondary boycotts and make the proposers of such action open to prosecution. Similar but further than the Beef libel laws in the US. Just shows how corrupt our political system has become.

I will be curious to see how this comes out. It also seems to me that there are companies that actively promote their reputation on forums (eg our sponsor and some participants) and there are others who have only recourse to heavy handed legal action probably becuase their service/product wouldnt stand close scrutiny. I know who I prefer to deal with.

also never end a sentence with a preposition......

In Australia we have seen these precedents before with such as Peter Werett who constantly dumped on manufacutres back in the 70's about cars and there designs and short comings. Wheels magazine, Modern Motor and others so the practice of sueing for speaking out against a company has precedents.

Just take a look at all our comments on Bunnies and others, this is leading to a situation that we/no-one would want to be silenced regarding bad service, bad products etc. By the same token none of would want to be sued.

There is no way I would like to be the one who caused this forum or any other to be closed down I am a memeber of Whirlpool also but haven't read the post.

One persons gripe should, I believe be brought forward, in such forums it may as we have seen bring others forward also with the same problem or similar.

If such as this is allowed to stop discussions it would make forums dull places, it could render us even mentioning a company or product, person etc.

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Originally Posted by Skew ChiDAMN!!

By definition, Libel is a false claim. The first forum member may be stating a fact and the second stating an opinion. Trying to lump them altogether as "libel" is perilously close to censorship.

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That's the problem. The laws on libel are very unclear and libel doesn't have to be a false claim, it could in fact be a correct claim, and it is not a sufficient defence to claim that what was published is the truth.

When I was working for the Swagman we were libelled by an article published in the Truth newspaper. The court ruled that whilst the article was correct it was still libel and awarded us $ 250,000 in damages, notwithstanding that the publicity generated us more business then ever before.

Be aware that whatever we post here is in fact publishing to the world and the laws of libel apply.

Peter.

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Originally Posted by Sturdee

That's the problem. The laws on libel are very unclear and libel doesn't have to be a false claim, it could in fact be a correct claim, and it is not a sufficient defence to claim that what was published is the truth.

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Apparently not in this case:

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There is a legal case unfolding in Queensland that every blogger should keep a watching brief over as it could set an unpleasant precedent for freedom of speech.
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It is seeking damages of $150,000 for each month that the comments remain on the website and wants two "forum threads" removed from the site.
Under Australia’s new uniform defamation code -- which came into force at the beginning of last year -- corporations are not allowed to sue. Only companies with less that 10 employees or not-for-profit groups can take action for defamation, although individuals within companies can sue if they allege that they have been personally defamed.
So instead, 2Clix, and its solicitor, Stephen Baldwin of Turnbull and Company, took the unusual path of suing under the little-used tort of injurious falsehood. The test for injurious falsehood is considered higher than defamation as plaintiffs have to prove the statements were untrue and that there was malice on the part of the defendant.
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Simon Wright has another 25 days in which to file a defence.
http://www.crikey.com.au/Media-and-A...of-speech.html

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Legal action over forum posts isn't anything new though, as back in 2001 the major Australian Overclocking & Hardware website, Overclockers Australia (OCAU) ran into legal strife when hardware reseller, Sunlit sued OCAU over comments made on its online forum. That case was ended before reaching a judgement, but still saw quite high legal bills for the sites owner, James Rolfe. Interestingly OCAU implemented a strict Defamation policy and removed all references to sunlit from its website when the case shut down.
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News travels fast on the internet, and to openly attack a popular and well respected Australian broadband website seems to have only invited far worse levels of ill will then the original two forum threads ever did. Blog posts, forum threads, chat rooms and other social networking discussion is lighting up over the topic with none of it favourable towards 2Clix, a trend that looks set to continue
http://www.idm.net.au/story.asp?id=8788

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‘Sunlit’ is one of only two words which are automatically censored by the software at OCAU. (The other has to do with a part of the female anatomy). So no one can criticize, or make any comment on this particular business at these forums.

I believe that 2clix also operates under another business name. Same address, same company spiel, different name. I don’t think that will help them when word gets out though.

I'm in another forum unrelated to woodwork that is being sued, we have been in and out of court for nearly a year now and yet it still drags on.

The plaintiff is used to people folding at first threat of legal action, thus when we decided to defend the case he took the well known stalling action usually used by defendants of filing a series of motions, hoping we will run out of money before him. He has tried to settle a few times but until he pays costs , I'm quite happy to continue.....

I'd lodge a counterclaim seeking unspecified damages from him for harassment and loss of enjoyment of a public forum etc.

That'll put the cat amongst the canaries

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Originally Posted by Sturdee

The laws on libel are very unclear and libel doesn't have to be a false claim

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Since 1 January 2006 'libel' is not current legal terminology, since defamation is not split into libel (written) and slander (spoken) anymore.
(Defamation Act, 2005)

Defamation is by definition a false statement.

Having been involved with a few defamation cases and not wanting to upset anyone, let me just say that many of you have it wrong.

To call someone a thief is defamatory. Agreed?

If I were to publish those comments and they were the truth (ie. he is a convicted thief), is anybody here going to tell me that I can be sued.

You guys are better off talking about electrical wiring or better still educate me and advise me of the case references for the precedents some of you speak of.

Interesting comments Boban.

Are you suggesting that some of the posts here might be keeping the urban myths rolling or even creating them?

I have no knowledge of the law however many things I hear about the law are from people who know of someone who went to court .... heard that a magistrate or judge ruled ..... but they say it in such a way that it sounds like fact.

People like me hear of these ridiculous cases and ridicule the law. I have even stated in the past that I have no respect for the law, this is a view I have held for over 35 years. Maybe I have been misled by idiots making out they know what they are talking about.:-:-:-

Perhaps I have been listening to so called experts with no qualifications or experience in law but like to tell a good story.

How do I determine who is spinning a good yarn and who is qualified and experienced in law like you.

I don't think there is anything intentional about it at all.

This area of the law has elements to it that most people are not aware of. Concepts such as qualified privilege are simply not common knowledge.

We all like to hear of the guy that did this and that and won his case and so forth. It's even common place in the media.

How many people take the time to read a judgment. Not many I think. Yet most of law (including the interpretation of legislation) is understood by the reasoning expressed within these judgments.

As to determining who spinning a yarn, well in some instances, even I wouldn't know. I'll be the first to admit that I know very little about the law outside those areas within which I have practiced. I only know about this instance because of my direct experience.

There are all sorts of judges out there and on occasion some wacky decisions, but my experience has been of a high level of competence, especially within the higher courts.

Bingo on the higher courts. Many cases are reversed on appeal. And the Supremes often, if not always, examine the legislative history, which may not appear in the final acts.

Worse yet are the early settlements that contradict reason, to save cost of litigation. An old cartoon showed a client interviewing his lawyer. "You have an excellent case, Mr. Jones. How much justice can you afford?"

Not a lawyer, etc.

Joe

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Originally Posted by Sebastiaan56

I will be curious to see how this comes out.

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2 Clix have backed down and sent Whirlpool a Notice of Discontinuance. Each party will bear their own costs.
http://forums.whirlpool.net.au/forum...m?t=834421&p=1

There are also rumours circulating about the solvency of 2 Clix.

The outcome is positive, but no test case this time.

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Originally Posted by boban

Having been involved with a few defamation cases and not wanting to upset anyone, let me just say that many of you have it wrong.

To call someone a thief is defamatory. Agreed?

If I were to publish those comments and they were the truth (ie. he is a convicted thief), is anybody here going to tell me that I can be sued.

You guys are better off talking about electrical wiring or better still educate me and advise me of the case references for the precedents some of you speak of.

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Hee hee,

I used that in an interview once with a convicted thief. "But you are a thief arent you, why would I believe what your saying, you are a liar, you have lied before, I think your lying now."

The magistrate had a chuckle when defence raised it in court that "you cant say those things" when the obvious answer was he was a convicted thief so he is one and had lied in court when he was convicted.

the law :rolleyes: :D