EFA: October 2007 Archives
Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."Here we have the result. An own goal indeed.
EFA has published the submission that we made to the Commonwealth Attorney-General's Department's RFC on a draft of the Copyright Infringement Notice Scheme Guidelines. Kim Weatherall made an excellent submission, which covers the big picture issues very well - so EFA kept ours mainly on the EFA-type issues.
As I blogged about earlier, the judgment in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 was handed down this afternoon. It is significant for many reasons, including that it is the first precedent in Australia (or elsewhere, so far as I know) dealing with racial vilification/discrimination in forum postings, and because it's the first 'proper' case I've argued in court (not counting two trips to the small claims tribunal against landlords (both won), a minor debt claim against a former employer (won), and a speeding ticket that I once tried to beat (lost)...).
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
Gyles J made some comments in the judgment which are somewhat worrying, such as:
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
However, there is substance to the argument that the failure to remove the offensive material has not been shown to have any relevant connection with race or ethnic origin of the applicant or indeed any other Jewish person as required by s 18C(1)(b) of the Act. The failure of the unidentified administrator to remove the Second Message on and after 1 July 2006 was the clearest case of failure to act. I cannot conclude that such failure was attributable, even in part, to the race or ethnic origin of the applicant. If Dwyer [the president of the Collective] is accepted, the message should have been removed if its offensive nature was understood. However, failure to do so is just as easily explained by inattention or lack of diligence. Drawing the necessary causal connection would be speculation rather than legitimate inference. The same reasoning would be more obviously applicable to the systematic failure to monitor and remove offensive postings. Absent the necessary causal connection there is no breach of Pt IIA [of the Racial Discrimination Act] by the Collective.Seems to be a judicial application of Hanlon's razor - 'Never attribute to malice that which can be adequately explained by stupidity.'
Gyles J made some comments in the judgment which are somewhat worrying, such as:
I'll muse on those quotes sometime in the future.
- 'the conduct of the Forum in permitting the posting of anonymous messages that are automatically available for display without prior checking is entirely the choice of the Collective' (at [11]); and
- 'The Collective chose to conduct an open anonymous forum available to the world without any system for scrutinising what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.' (at [34])
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
