[ Edit: it appears that the Court struck out a preliminary motion to close down the site and rejected the original claim. The Plaintiffs seem to have indicated that they will re-file the claim. ]

The good news is that yesterday, the Supreme Court struck out the ($42M) defamation suit against the operator of ZGeek.

While we're very thankful that this defamation action went no further, the fact that it got as far as it did shows a serious problem with a lack of certainty in Australian law. The non-profit website operator had to expend significant funds donated by the site's members in order to defend the action, and is now saying that the organisation will no longer be able to operate in Australia, given the stress and risk of further legal action:

But now, some even worse news. ZGeek is abandoning Australia. ZGeek as a company has been shut down and any future of the site conducting business in Australia is just not going to happen until the laws change as they offer no protection for internet content hosts based in Australia. Basically, if you allow comment on your website and you live here, you are open for the same troubles as I am having. Even if your site is hosted OS. Got your own blog? Be very worried. Even after we complied with their lawyers demands they are still coming after me and the Broadcasting Act allows them.

Unfortunately, this lack of certainty is a recurring theme in Australian internet laws. Our copyright laws are unclear enough that companies like iiNet are exposed to risky litigation because the movie industry alleges that some of its customers infringed copyright and that iiNet has an obligation to disconnect subscribers based upon unsubstantiated allegations of infringement. The safe harbours are complicated and their scope is unclear. Our defamation laws provide only partial and uncertain protection for website operators, as this case demonstrates. Our censorship laws hold Australian hosts who even link to potentially prohibited material liable for fines of up to $11,000 a day. This level of uncertainty and risk is driving business off-shore and harming our competitive advantage, not to mention the ability of Australians to express themselves online.

Dear EFA Supporter,

The outlook for online freedom in Australia continues to be less than stellar as the Rudd government's plan for mandatory Internet censorship gains momentum, with computer games now in their sights. In the meantime, EFA received a link deletion notice - under threat of an $11,000 per day fine - for a discussion on the politically sensitive nature of blacklisted content.

However, it's not all bad news. A recent victory for IceTV in the High Court has set an encouraging precedent and some positive indications have come to light that the Anti-Counterfeiting Trade Agreement will not seek to introduce onerous new penalties on individual Australians. EFA was also able to make a positive contribution recently at ICANN in Sydney, and connect several recipients of legal threats with appropriate volunteer representation. Read on for further details.

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The operator of the Australian discussion forum ZGeek has been named as a defendant in a defamation suit for material posted by ZGeek users to a thread about a 9/11 conspiracy theory. Another forum is apparently also named as a defendant in the claim.

The plaintiffs are apparently seeking $42 Million in consequential damages, claiming that they lost a film deal as a result of criticism of the conspiracy theory in the discussion fora.

What makes this claim stranger is that the owner of the site states that he complied with earlier takedown notices sent by the plaintiffs' lawyers about the alleged defamatory material.

These types of claims are very worrying for the high levels of uncertainty that they impose on forum operators. In the US, Section 230 of the Communications Decency Act essentially immunises forum operators from defamation claims like this one, but no such strong protection exists in Australia. This lack of certainty effectively provides an incentive for those who feel aggrieved by posts on a public forum to seek damages against the operators of the forum, even where the operators have complied by removing the allegedly defamatory material.

The website operator may well have a defence under Australian law, but there is still significant uncertainty as to what is required of a forum moderator in Australia. We lack solid immunities and appropriate notice & takedown procedures, which means that operators of public fora can never be certain as to their potential liability - something that significantly harms freedom of expression in Australia.

We have not yet seen the text of the complaint. It appears that the ZGeek community has rallied behind its (non-profit) administrator, and have collectively raised enough money to respond to the allegations. We will be following this case very closely in the future.