forum owner sued for malicious user comments

[doriae86]

http://www.news.com.au/story/0,23599,22405674-2,00.html

the owner of whirlpool forums is being sued by the creator of some accounting software who was bagged out on the forum

amazing really, free speach is fuc all!

i guess its only a matter of time, top racing sues antilag.com ?

[doriae86]

ohh yeh, dont bag china, or ill sue ya kunt!

[Jase]

wonder how it would go against a .com site, as could argue its hosted internationally..? maybe

I dont really know what im on about :)

Big interesting to see what goes down.

[Blueraven]

actually i am pretty sure if you read up on it, australians dont have the right to free speech.

(everyone is just so used to hearing about the 2nd amendment to the USA constitution about freedom of speech, pretty sure a mate of mine while studing law at uni filled me that there is nothing in our laws that give us that right. same goes for the right to remain silent when being arrested,we dont actually have that either. not 100% sure tho, i could be talking out my ass....)

[doriae86]

we do have the right to remain silent

free speech isn’t written into Australian law, more its entrenched into our lifestyle

we almost always have the right to free speech. Its only when the message conveyed is slanderous that the problem occurs

[Muppet_Guy]

Nah you have the right to remain silent here in Oz Nik, not sure about the freedom of speech though. As far as I know that is not in the Oz constitution, but it must be somewhere else *thinks back to his Yr 11/12 P&LS classes*

This is so farked up. Either way hopefully it won't set a bullsh|t precedent where you can't express your own opinion. I reckon it will be thrown out of courts. Isn't there a disclaimer on site, which should say that the owners of the site take no responsibility for views expressed by third parties on it?

[TJ]

That lawsuit will fall on its ass.

Have to prove its malicious, that it actually cost them business.

Funny thing is, say 100,000 people are on the forum, and half read it.

Now, 10 million plus aussies who read the news will read it, go look at the read, and see how shit they are. Whats going to cost them more?

End of they day make a crap product, and people will bag it.

[Blueraven]

like most forums i will be he has a wicked disclaimer about posts on the forums being the opinion of the poster and not the owner etc etc...

[Joe]

Just goes to show you need to be careful what you say....if that company wins or even gets ANY favourable decisions at all in court, it will set a precedent.

[Muppet_Guy]

You gotta keep in mind that firstly they will need to prove that whatever was said on the forums, was a lie. I dunno what exactly was said, but if someone on there said "Don't buy 2Clix coz it crap, because of this and that" and the reasons stated can be proven as reasonable for them to make that comment, it will not be considered to be defamation, and will be thrown out of court.

Also, dunno who Simon Wright is and how much money he's got, I don't think any individual would pay so much money out of his own pocket (150K x few months), I'd rather either go bankrupt, and give them nothing, or try to settle for some measly sum (becasue otherwise I would give them nothing). If case is settled out of court, then no precedent obviously.

[Muppet_Guy]

And hell, even if there is a precedent, set up a company overseas in some dodgy country, register domain in that name, and they won't touch you. In worst case you liquidate the company and set up a new one :)

[ELUSIV]

like most forums i will be he has a wicked disclaimer about posts on the forums being the opinion of the poster and not the owner etc etc...

id say so, most forums will have a disclaimer that protects the site owners/administrators from legal action saying that the views expressed by members of the forum are not that of the owners/admins, blah blah.
Though even with that they still have a duty to uphold standards to a certain public extent and as long as they make some effort regardless of how often or how much as long as they have done something that suit wont stand in court.

I dont think people should be able to be bagged for what they say on forums, imo if you have a sh1t product then you deserve for it to be bagged out and it needs to be made aware so that other people dont purchase your sht|tty product, if you make good stuff then you will receive praise via forums and therefore more business. Need to put the onus back on the manufacters rather than falling into a retarded litigous society like the yanks.

[doriae86]

You’ll find allot of times the court will freeze and individuals assets before the case is heard to prevent them selling or disposing of their assets
So if he has a house, car or anything else of value and he looses the case chances are these will be sold to pay the damages

[Muppet_Guy]

True. Assuming he has those assets (net of debt). 150K times a number of months, that is still a hefty figure though...

I reckon this is not gonna be good for 2Clix reputation. I can imagine this spreading around, and I wouldn't be surprised if most of the people in charge of choosing their accounting software would blacklist them. Although to be honest, their market share is fark all anyway. I reckon it's the beginning of the end of 2Clix.

Also, as far as damages go, they will need to prove that the 150K per month losses are as direct result of the thread on Whirlpool...

[1JZNOSHIT]

i guess its only a matter of time, top racing sues antilag.com ?

Whats Top Racing done wrong?

[Sciflyer]

Even if ultimately the defendant is successful it can still have ramifications for the forum - Overclockers.au was sued a few years ago, cant remember what the result was but it cost them a lot of money to defend and the forums were taken offline for a while, when they came back there were strict guidelines and now is closely moderated for potentially libellous posts- you cant say anything negative about any company without risking your post getting deleted...

[SLEEKA]

anyone can sue anyone for any reason, doesnt mean that that person will win. I dont see this going very far...

[wadragracing]

A disclaimer means f all.
It would come under defamation laws and the owner of the site (ie the publisher) is responsible. It doesn't matter where the site is hosted.
The internet is also very murky. Because websites are international, anyone, from anywhere could sue you and laws very wildly in regards to defamation.
They are unique in that the onus of proof can be on the person making the claims, and not the person about who the claims are being made. Also the claims must be shown to be in the public interest.
Maybe something to think about before you go off half-cocked on a forum about somebody.

[wadragracing]

That lawsuit will fall on its ass.

Have to prove its malicious, that it actually cost them business.

Actually it would only have to be shown their reputation was harmed.

[joshg123]

I got phoned up about bagging a company out on here once.

Threatened to sue me with deformation.

I laughed.

Havent heard anything since

[yumafia]

im keepin quiet about the certain milfs

[Muppet_Guy]

Actually it would only have to be shown their reputation was harmed.

I think it's more about determining the actual $$$ damage done to the business. They'd need to value it somehow. I'm sure his lawyers will pick all over the company's financials and other stuff to distance the forum from the actual cause of their declining sales...

[Libertygt]

it wont get any where. I am sure that company could of solved the issue with a simple email asking to take down the thread!!! Sounds like a bunch of dickheads

[Muppet_Guy]

I think they did ask for the thread to be removed previosuly, and Whirlpool refused...

[ben351]

I got phoned up about bagging a company out on here once.

Threatened to sue me with deformation.

I laughed.

Havent heard anything since

LOL

me too ... certain Ford Dealership ... some weasle on here must be dobbing people in ... poor kunt.

[McLOVIN]

Nah you have the right to remain silent here in Oz Nik, not sure about the freedom of speech though. As far as I know that is not in the Oz constitution, but it must be somewhere else *thinks back to his Yr 11/12 P&LS classes*


Right to remain silent isn't a blanket thing. It's a common law right that does not exist under certain circumstances eg. where legislation specifically states an individual must provide certain information or a court orders that certain information be provided by a witness.

Right to free speech is a common law right, so it's pretty much secured unless legislation is introduced to eliminate that precedent. Having said that, defamation, slander and libel obviously do not fall within free speech.

[TJ]

I got a phone call once after posting a piece of dog shit and a 32 GTR in the same same thread.

Good times all round.

[Lonewolf]

likely fall on its ass.
Find it amusing that its now gone worldwide. im sure 2clix.co.uk will be happy with the association.

really, if you dont want this shit, dont make a shitty product.

[Fryman]

taken from the crikey newsletter. quite a good read


A Whirlpool of "injurious falsehood"

Andrew Dodd writes:

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.
The case suggests that lawyers are beginning to circumvent the new uniform defamation code by resorting to the civil tort of "injurious falsehood" as a way of seeking big payouts from media companies for their corporate clients.
The case has been initiated by a software company called 2Clix against Simon Wright, the host of a popular IT blogsite called Whirlpool.
The case is likely to clarify how moderators are meant to behave when hosting forums in which contributors say defamatory things and, specifically, it should establish whether a website that posts derogatory comments by contributors is acting maliciously – an important test for proving injurious falsehood.
In its statement of claim, lodged on Monday, 2Clix cited around 30 postings on Whirlpool that were critical of its products. It claims the comments were both "false and malicious" and that the website refused to remove them after the company complained. 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.
2Clix is relying on the decision in a case called Kaplan v Go Daddy Group in 2006 when a NSW Supreme Court judge ruled that a person who hosted a website called hunterholdensucks.com "established the site and thereby invited disparaging comments."
2Clix believes its case fulfils the criteria to establish an injurious falsehood, as set out in another important case called Haines v the ABC of 1995.
Whether these cases are applicable will be an important issue.
Whirlpool has declared that the action by 2Clix "has no merit" and has vowed to "defend the matter vigorously," Simon Wright and the lawyers for Whirlpool put a message on the site urging contributors not to prejudge the case by posting inflammatory remarks.
But traffic on Whirlpool has increased with most comments criticising 2Clix for suing and some offering to contribute to a legal fund to fight back.
Simon Wright has another 25 days in which to file a defence.

[Lonewolf]

in that case, 2clix have no hope.
Good luck proving that the comments are false (what are they going to do, supeona the forum users?), and that they were malicious.
If there are that many people that think the product is crap, then its highly likely it is.

[Sciflyer]

As i said, thats not really the whole point

Even if 2clix know they have no chance, they have partially achieved what they want even by the *threat* of legal action and by the time and expense of forcing Whirlpool to seek legal advice/defense.

This is part of the reason why there are laws against vexacious complainants - to stop people/organisations from continually dragging others into court even when it's clear they have no case to answer

[kirbo]

Whingepool and 2clix are equally shit. Sue me. :wave:

[CyberNetiC]

actually i am pretty sure if you read up on it, australians dont have the right to free speech.

(everyone is just so used to hearing about the 2nd amendment to the USA constitution about freedom of speech, pretty sure a mate of mine while studing law at uni filled me that there is nothing in our laws that give us that right. same goes for the right to remain silent when being arrested,we dont actually have that either. not 100% sure tho, i could be talking out my ass....)

I PLEAD THE FIF

[/chappelle]

[Lonewolf]

As i said, thats not really the whole point

Even if 2clix know they have no chance, they have partially achieved what they want even by the *threat* of legal action and by the time and expense of forcing Whirlpool to seek legal advice/defense.

This is part of the reason why there are laws against vexacious complainants - to stop people/organisations from continually dragging others into court even when it's clear they have no case to answer

i think 2clix would have harmed their reputation even further over the publicity?

[S_E]

exactly, I hadn't heard of them before, but now I know they are shit :D