Silberberg v Builders Collective of Australia judgment due Tuesday

At 2:15pm in Canberra on Tuesday 2 October, Gyles J of the Federal Court of Australia will hand down his judgment in Silberberg v Builders Collective of Australia.

This case is one of four currently before the courts in Australia, in which the operators of an Internet forum have been sued because of what third parties have said or done in the forum.  The others are:

• A case before the NSW Land and Environment Court, in which a NSW local government authority sought to prosecute the owner, host, and moderator of an Internet forum because third parties were allegedly leaking confidential council information and documents on the forum.  The prosecution was under s 664 of the Local Government Act 1993 (NSW) and alleged that these persons had unlawfully 'disclosed' information 'obtained in connection with the administration or execution of this Act'.

• A case before the NSW Supreme Court, in which an religious school sued the moderator of a NineMSN-hosted forum over comments on the forum.  Although the school was incorporated as a company, it is not for profit, therefore can still sue for defamation.

• The Whirlpool case, which I've discussed earlier.

Silberberg involves allegations of unlawful racial discrimination under s 18C of the Racial Discrimination Act 1975 (Cth).  The material in question (which is alleged to convey anti-semitic imputations) was posted in the forums of the Builders Collective by a third party, who is the second respondent in the action.

Silberberg will be a significant judgment for a number of reasons.  It will be especially significant to me because I appeared in the Federal Court on behalf of the Builders Collective and argued their defence.  Fortunately for the collective (who could not afford legal representation), an obscure provision of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) gives a right of appearance in this type of case to people who aren't legal practitioners.

I won't comment on the merits of the case -- at least not until after the judgment is given.  But on a personal note, I'll observe that appearing in court and arguing the Collective's case against senior counsel who appeared for the applicant was equal parts terrifying and exhilarating.

Fingers crossed for Tuesday.