Electronic Frontiers Australia (EFA) today welcomed a court decision that the operator of an Australian Internet forum site was not liable for comments containing racial discrimination which were posted in the forum by a third party.
The case, Silberberg v The Builders Collective of Australia  FCA 1512, pitted the Managing Director (Silberberg) of the Housing Industry Association (HIA) against an organisation of small independent builders who lobby against the HIA (the Collective). A third party posted two comments in the forum on the Collective's website which obliquely referred to the Jewish ethnicity of Silberberg as being responsible for the avaricious attitude of the HIA. Some time after becoming aware of the comments, Silberberg demanded that the Collective delete the comments, apologise, and identify the user who posted them.
The Collective removed the comments after being contacted by Silberberg's lawyers. Silberberg then made a complaint to the Human Rights and Equal Opportunity Commission (HREOC), alleging that the Collective and the forum user had unlawfully discriminated against him because of his race. HREOC later terminated the complaint, and Silberberg then sued the Collective and the forum user in the Federal Court of Australia.
Silberberg sought a declaration from the court that the Collective had unlawfully discriminated against him because of his race, that the Collective be ordered to apologise to him (which the Collective had already done), and an injunction to prevent the Collective from publishing similar comments in the future. Silberberg at no time sought damages or monetary compensation from the Collective or the forum user.
Because the Collective could not afford legal representation, EFA Chairperson Dale Clapperton represented them at the hearing of the case in early April this year.
The lawsuit alleged that the Collective had "published" or "allowed to be published" the comments in question because of Silberberg's Jewish ethnicity. The basis of the Collective's defence was that they did not publish the comments, they merely provided a facility through which which the forum user published the comments; and that they did not "allow [the comments] to be published" because they did not know the comments were in the forum until alerted to that fact by Silberberg's lawyers.
Justice Gyles found on the evidence that the Collective became aware of one of the comments approximately six months after it was posted, and that knowledge was sufficient to constitute publication. However, Justice Gyles also found that there was no racial motivation for the Collective's failure to remove the comments, and that any failure to remove the posts could therefore not contravene the Racial Discrimination Act 1975.
This case is one of four current legal cases in Australia where the owners or moderators of Internet discussion forums have been sued because of what third parties have said or done in those forums.
"Internet forums and discussion sites are a vital facility for communication and interaction on the Internet," said EFA Chairperson Dale Clapperton. "Increasingly, forum operators have been sued because of what other people say and do in their forums.
"EFA strongly condemns racial discrimination and vilification. However, the ultimate responsibility for forum comments which racially vilify lies with the person who posted the comments. It is impractical for forum operators to vet each and every posting in their forums, and if they have no knowledge that this type of material is on their site, they should not be liable."
"Today's decision is also a sober reminder that forum operators are exposed to significant legal liability in many other areas of law, including copyright and defamation," Clapperton continued. "The liability of people who provide online forums and other such facilities is a very live issue in Australia, and legislative reforms may be required to provide protection to these people, such as exists in the United States."
It is not known whether Silberberg will appeal today's decision.
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The judgment in this case:
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.
Mr Dale Clapperton
Phone: 0416 007 100
Email: dclapperton at efa.org.au
Electronic Frontiers Australia Inc -- https://www.efa.org.au/