|
 |
 |
|
Australian Press Council submission to the federal Minister of Communications on the problem of defamatory comments posted by users to newspaper websites 23 April 2007 Executive Summary The Australian Press Council brings to the attention of the Commonwealth government the problem of defamatory or offensive material being posted by users to website forum discussions and the associated exposure of publishers to the risk of liability. A healthy democracy thrives on free discussion and debate involving as wide a range of people as possible. The evolution of the Internet has facilitated a dramatic growth in the number and range of people who are able to participate in open debate on a range of issues. The development of the online forum, often in conjunction with a weblog, is of particular significance in this flourishing of public debate. The online forum has transformed the consumption of media content from a passive activity to a vibrant exchange of views analogous to the vigorous debates that once took place upon soapboxes in public squares, in London's Hyde Park or in Sydney's Domain. But this rejuvenation in public debate brings with it problems and risks. By facilitating the publication of user comments upon their websites, publishers expose themselves to liability for any defamatory or offensive content included in those comments. [1] The Press Council urges the Australian government to reform the Broadcasting Services Act in order to ensure that publishers are not exposed to excessive risk in relation to material that they have not authored. Communications and media are undergoing dramatic change. Two examples of current developments are rapid growth in online publishing and the blossoming of sites that facilitate the posting of comments by users and/or readers. The rapid development of online publishing has generated novel legal problems for those involved in delivering online content, whether they do so in the capacity of internet service providers (ISPs) or as publishers. In the past, news publishers had complete control over content that appeared in the pages of their papers and thus were solely responsible for ensuring such content was neither offensive nor defamatory. In that context it was appropriate for publishers to bear the legal liability for the publication of content that was found to be offensive, defamatory or otherwise unacceptable. As the new media evolved ISPs and other "content hosts" who carried content on their servers or websites but did not exercise editorial control over that content, emerged as an issue. If an ISP is treated as a publisher it is liable for offensive or defamatory content. But if an ISP is treated as a common carrier, akin to a telecommunications service, it is not liable for offensive or defamatory content that is distributed via its network. This issue was to some extent addressed by clause 91(1) of schedule 5 of the Broadcasting Services Act 1992 (Cth), which gives a certain degree of protection to content hosts against civil actions with respect to content of which the host was unaware. ISPs and content hosts also enjoy a substantial level of protection from the "innocent dissemination" provisions in the Defamation Act 2005. [2] While the Defamation Act 2005, together with the Broadcasting Services Act, appears to clarify the position with respect to the liability of content hosts, the situation remains problematic where the publisher or content provider is not the originator or author of material appearing on its website, but a certain limited amount of intervention is exercised in relation to that content. This situation arises where a website hosts a "bulletin board" or "forum" where users upload comments which then appear on the site. These bulletin boards or discussion forums vary in the degree of intervention that is exercised by the content host. In some instances the contributions by users are vetted carefully before they appear on the website, in other instances the posts are processed automatically and the content host makes no editorial intervention whatsoever. The user forums run by the metropolitan daily newspapers are carefully filtered before appearing on their websites. User posts are checked for inappropriate content, including defamatory or offensive comment. This task must be done by a senior editor who is familiar with defamation law and other legal and ethical benchmarks. The time taken on this task varies considerably, depending on the topic of the forum being monitored, the publisher and the popularity of the blog to which the forum is attached. Some editors have indicated that two to four hours per day per forum would be adequate to satisfactorily vet user posts, although each publisher runs several different forums on their website. In some instances staff are allocated to the task on a full time basis. Publishers have indicated that where user posts are submitted out-of-hours (eg overnight) they are not published because there are no staff available, thus denying users the immediacy which the medium is capable of providing. In certain instances, if a forum is dealing with a "hot button" issue which stimulates a large number of responses, only a proportion of user posts can be published due to the staff time required to vet them. Some publishers have indicated that they would like to have the option of running unmediated forums which would involve publishing all posts submitted by users, but this is not feasible at present due to the need to closely monitor posts in order to remove material which is inappropriate, such as that which could give rise to litigation or which is offensive. There is no doubt that the party who submits a defamatory comment to one of these websites is liable. But the degree of liability held by the party who maintains the website varies according to whether it is regarded as a content host or as a publisher. This leads to the ironic situation wherein a web manager who makes an effort to filter out potentially defamatory comments is more likely to be found liable than a website which makes no effort to remove objectionable content. The lack of protection against liability with respect to user-uploaded comment facilitates the stifling of public debate. A person who objects to discussion about them in a user forum may seek to shut down debate by commencing action for libel or threatening to do so. In response to such threats the website will often respond by filtering or banning any discussion on a particular issue, whether defamatory or not. This was exemplified by the recent censoring of debate on a UK website dealing with motherhood and child rearing due to the threat of litigation from a prominent parenting expert. In that case the website managers stated that they were afraid of losing their homes if litigation proceeded and that they were consequently forced to ban any mention of the expert or her book. [3] In the United States the issue of the ISPs and content hosts was addressed by s 230 of the Communications Decency Act 1996, which provides that: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. [4] The section also states that: No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section. [5] These provisions have been interpreted by US courts in a manner that has effectively extended the protection against liability to defendants beyond common carriers. In 2001 Amazon.com relied on s 230 to successfully defend an action with respect to statements posted by third parties to the Amazon website [6]. More recently, in the case of Barrett v Rosenthal [7], s. 230 was successfully relied upon by a defendant who received emails containing defamatory statements and then posted them to an Internet discussion group which she operated. In both of these cases the defendant's role was consistent with that of a publisher. Where editorial content has been prepared and edited by newspaper staff, there is no ambiguity and publishers accept liability for such material. However, with regard to material that has been posted to newspaper discussion forums by readers or users, the Press Council is of the view that the level of protection against legal action that is enjoyed by content hosts should be extended to newspaper publishers. The Council is not proposing that publishers have a complete exemption from liability with respect to all material appearing on their websites. Rather, the Council advocates an exemption from liability that is limited in scope to that material which has been posted by users to internet forums. Articles and commentary written by journalists and editors will not come within the scope of such an exemption. Amendment to the Broadcasting Services Act Clause 91(1) of the Broadcasting Services Act provides a certain amount of protection to internet content hosts against liability with respect to hosted content, provided that the content host was not aware of the nature of the content. Significantly, the legislation specifies that content hosts cannot be required to monitor the content that they host. At present, it is doubtful that a newspaper publisher would be considered by a court to fall within the definition of an "internet content host" for the purposes of the Act. A clause should be inserted into the Act which extends the definition of "internet content host" to include the role of newspaper publishers with respect to the displaying of comments uploaded by users. An alternative, although of lesser desirability to the amendment proposed above, would be the introduction of a conditional exemption or defence whereby publishers who display user-uploaded content on their websites would be freed from liability with respect to such content, provided that the publishers subscribe to a voluntary code of conduct. The voluntary code would obligate the publisher to remove defamatory or offensive comment from websites as soon as possible after being made aware of it; to monitor content to the extent it is practical to do so, and to publish apologies and corrections when aware of any defamatory, offensive or otherwise inappropriate content being posted to their sites. The publisher might also be obliged to require users to register and provide personal information before being allowed to participate in online forums. Breaches of this code would be subject to adjudication by the Press Council. Where a publisher has failed to fulfil their obligations they would risk losing the exemption or defence against liability. The advantage of this approach over other ways of dealing with the problem is that publishers would have an incentive to monitor content and remove defamatory or offensive material, but would not be penalised when the volume of user-uploaded content was such that it was not reasonably practical to read every comment posted prior to publication. In recent years the internet has acquired a significant role in the democratic process, by facilitating public participation in discussion on policy issues. As this role develops the volume of comments posted by users to newspaper websites can only be expected to increase. As the volume of posts expands the task of vetting comments and filtering out defamatory material will become increasingly onerous and the proportion of comments that fail to be published due to insufficient time to monitor them will increase accordingly. By limiting the exposure of publishers to liability arising from these user-posted comments legislative reform will enable publishers to ensure that the greatest possible number of user comments can be displayed on newspaper websites. Footnotes
See also Return to Documents with the |
|||
|
About the Council [ its history and benefits of self-regulation | Members] | |
|||
|
Last updated 26 April 2007 All material ©The Australian Press Council. Website Design, Construction & Maintenance by |
|||
icon require the Acrobat Reader, a Free Utility from Adobe. Click