Australian Press Council submission to the state and territory Attorneys-General 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 the government the problem of defamatory 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 content included in those comments. [1]

The Press Council urges governments to reform the Defamation Act in order to ensure that publishers are not exposed to excessive risk in relation to material that they have not authored. Such reform could also ensure that publishers deal appropriately with defamatory posts when they are aware of them.

Submission

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 which 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 defamatory content.

As the new media evolved the peculiar position of 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 defamatory content. But if an ISP is treated as a common carrier, akin to a telecommunications service, it is not liable for 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 that 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 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 which has been posted to newspaper discussion forums by readers or users, the Press Council is of the view that the level of protection against defamation actions which 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.

Innocent dissemination

Section 32 of the Defamation Act establishes a defence against defamation actions if the defendant published the offending material in the capacity of a "subordinate distributor". The Press Council calls for this section to be amended by the insertion of a clause which specifies that a publisher who allows user-authored content to be uploaded to and displayed on the publisher's website acts as a subordinate distributor with respect to such uploaded content. Even if this amendment were to be implemented, a publisher who was aware that material was defamatory or whose ignorance of the defamatory nature of the material was due to negligence, would be prevented from relying on the defence due to the effect of s 32(2). This would obligate publishers to remove uploaded material from their websites once informed of its defamatory nature and encourage publishers to monitor user posts.

Voluntary code of conduct

As 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 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 comment 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 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.

Conclusion

In recent years the Internet has a 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.

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Footnotes

1. The Australian Press Council is concerned only with those websites published in conjunction with newspaper and magazine publishers.[return to submission]
2. Defamation Act 2005: s 32 Defence of innocent dissemination
   (1) It is a defence to the publication of defamatory matter if the defendant proves that:

   (a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
   (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
   (c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

   (2) For the purposes of subsection (1), a person is a "subordinate distributor" of defamatory matter if the person:

   (a) was not the first or primary distributor of the matter, and
   (b) was not the author or originator of the matter, and
   (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

   (3) Without limiting subsection (2) (a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:

   (a) a bookseller, newsagent or news-vendor, or
   (b) a librarian, or
   (c) a wholesaler or retailer of the matter, or
   (d) a provider of postal or similar services by means of which the matter is published, or
   (e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or
   (f) a provider of services consisting of:

   (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or
   (ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or

   (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or
   (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person. [return to submission]

3. The Australian, 6 March 2007, "Mum's the word on website as baby guru spits dummy", referring to the threat of litigation by Gina Ford against Mumsnet. [return to submission]
4. s. 230(c)(1) [return to submission]
5. s. 230(e)(3) [return to submission]
6. Schneider v Amazon.com Inc, 31 P.3d 37 (Wash. Ct. App. 2001) [return to submission]
7. California Supreme Court 2006 [return to submission]

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See also
Index of website material on defamation
2007 submission to federal Minister for Communications calling for similar amendments to the Broadcasting Services Act

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Freedom of the Press overview

 

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