2Clix lawsuit a 'chilling' attack on free speech

2clix’s lawsuit against Whirlpool creator Simon Wright could spell the end of useful Internet forums

The lawsuit filed by 2Clix against Whirlpool forum creator, Simon Wright, could have a "chilling effect" on reasonable and factual comments people may make on Internet forums, according to David Vaile, executive director of the Cyberspace Law and Policy Centre at UNSW.

"The issue is that Whirlpool is a public and very broad source of information used by people to find out the best deal, the best product, what is going on, and is based on people sharing anecdotes," said Vaile.

"If they [Whirlpool] lose here, the main effect won't be that the comments are taken off, but rather they will be hit with a huge (damages and legal) bill and that could mean the end of Whirlpool."

"If that happens, it has a chilling effect on everybody, ISPs and the content hosting community, because they are all thinking 'that could be us next'."

Vaile points out that if successful, 2Clix's lawsuit will pave the way for legal attacks on any Internet content hosts who want to defend the right of their subscribers to say what they want to say.

While 2Clix's claim relates to the common law tort of 'injurious falsehood', Vaile says it illustrates shortcomings in Australia's defamation, copyright and censorship laws.

"There is a historic compromise reached between ISPs, the Internet content hosting community and the government. It's in Schedule 5 of the Broadcasting Services Act, and it's a special partial protection regime for both ISPs and Internet content hosts."

"What it boils down to is that if you don't know, you are not liable. It excused both ISP and Internet content hosts of the potentially economically unworkable option of having to monitor, moderate and control everything they facilitate, regardless of whether the contributors are named or anonymous."

"The trade-off is once they do become aware of it, they don't get that protection any longer."

But Vaile says that if they implement a conscious monitoring regime, like Whirlpool does, they are in a catch-22 situation because they have a monitoring process and therefore can't act surprised when it is brought to their attention.

"Under Australian law you are damned if you do, and damned if you don't. If you try to moderate you are deemed to know everything and are responsible for everything, so you get no protection."

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Vaile feels that the law has not got the balance right in supporting an operator that takes nasty and malicious comments out, because that very act makes them responsible for everything else they leave on.

2Clix's lawsuit echoes a long standing issue in Australian law; namely our lack of a clear and defined Bill of Rights protecting free speech.

"Australian law is much harsher towards the publisher than it is in, say the U.S., where they have the First Amendment to the Constitution which gives a constitutional right to freedom of speech.

"We've got some of the worst parts of liability for this sort of thing -- injurious falsehoods and defamation -- but we don't have a Bill of Rights or free speech rights.

"In many ways, the law in Australia can be much more easily used to suppress free speech and threaten people making reasonable comments about products or services.

"Politicians and governments have been happy to have a much more dangerous environment for people to make statements in," he says.

Vaile says that there is simply no reward for monitoring an Internet forum, and 2Clix's case illustrates that as a content host you are better off leaving every single post - regardless of how irrelevant, nasty, or fictional it may be - in order to escape legal responsibility.

Ultimately, this could spell the end of fair and accurate Web forums, as their effectiveness at informing consumers will suffer because of a lack of moderation and monitoring, whereas self-censorship admits responsibility and opens the door for legal action.

Vaile's sentiments were echoed by Dale Clapperton, Chair of Electronic Frontiers Australia, in an email to subscribers of the EFA media release list.

Clapperton called 2Clix's action "an attack on freedom of speech and the ability of consumers to engage in legitimate online criticism".

"One of the great benefits of the Internet is that it allows consumers to become better informed, by searching for information about products or services. If negative comments about poor quality goods or services cant be published for fear of a lawsuit, consumers will be unable to properly inform themselves."