Electronic Frontiers Australia (EFA) today condemned a lawsuit filed against the operator of whirlpool.net.au, one of Australia's largest online discussion forums.Some messages posted in the Whirlpool forums have criticised the products and services offered by software company 2Clix Australia Pty Ltd (2Clix). The lawsuit alleges that the operator of Whirlpool has maliciously published those comments, with the intention of damaging 2Clix's business. 2Clix claims that these comments have caused a "severe downturn in monthly sales" of approximately $150,000 per month.

"This action is an attack on freedom of speech and the ability of consumers to engage in legitimate online criticism," said EFA Chairperson Dale Clapperton. "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 can't be published for fear of a lawsuit, consumers will be unable to properly inform themselves."The lawsuit by 2Clix is for the common-law tort of "injurious falsehood", which is distinct from the more common and better-known tort of defamation. "2Clix have sued for 'injurious falsehood' to sidestep recent national changes to defamation laws, which removed the right of most companies to sue for defamation. Those changes were designed to ensure that individuals could engage in robust debate and criticism of companies, without the threat of a lawsuit hanging over their head," continued Clapperton.

"This case has echoes of the notorious 'McLibel' action in the United Kingdom, and the lawsuit by David Jones against the Australia Institute over allegations of 'corporate pedophilia'. Corporations are increasingly using the courts to silence and intimidate people who criticise the corporation."

The Statement of Claim filed by 2Clix includes the allegation that Whirlpool "did not require proper verification of identity" before it allowed people to become registered users.

"Forum operators are not required by law to verify the identity of their users, nor is there any reasonable way for them to do so," Clapperton continued. "Plaintiffs have, in the past, argued that forum operators were 'reckless' for not verifying the identity of their users. Forum operators are not the identity police, and the fact that they do not verify users' identity does not make them liable for what their users say or do."

EFA is concerned that an adverse decision in this case could impose significant burdens and legal liability on the operators of Internet forums and discussion sites. Such a result could cause many such sites to close down.

EFA understands that Whirlpool engages in moderation of obviously inappropriate content, a practice which EFA endorses. However, forum operators are not equipped, and should not be required, to verify the truth or falsity of criticism posted by third parties. The ultimate responsibility for content posted by third parties lies with the person who posted it.
-- Ends --

Below is:
- Background information
- Contact details for media

Background:

The Whirlpool website:
http://www.whirlpool.net.au/

The Statement of Claim filed against the operator of Whirlpool:
http://whirlpool.net.au/img/article/2clix/soc.pdf

About EFA:

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in 1994, is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties.

Media Contact:

Mr Dale Clapperton
EFA Chair
Phone: 0416 007 100
Email: dclapperton at efa.org.au

Electronic Frontiers Australia Inc -- https://www.efa.org.au/

1 comment

  1. I'm obviously very naive - because to me this appears to be an open/shut case, since there is a strong defence (according to the defamation act 2005).

    I really don't see how they have a case at all, since the negative comments are obviously about individual users opinions (honest opinion) based on their experience. Surely if their products did what their customers expected (i.e. they got what they paid for) then their products would not be criticised so heavily. This could also go into substantive or contextual truth.

    Then you add in - what does whirlpool have to do - not allow 'public interest' information to be disseminated? How does the consumer group 'Choice' avoid defamation? If whirlpool users want to advise their community (it may be huge, and distributed, but it is essentially a community group) of the pitfalls they've experienced, and someone chooses not to spend their cash on that product because of it - surely thats not defamation, thats consumer choice based on workmanship?

    Comment by Rebecca on 3 November 2011 at 6:22 pm