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.

16 comments

  1. If Conroy wanted to do something useful it should be to review this situation in Australia.

    I know of one community based forum that was to enable discussions of local issues not going live for fear of liability. Another forum that served the same community has recently gone "offline", in part due to concerns of liability either directly and indirectly.

    Comment by CW on 8 July 2009 at 23:53
  2. Surely with the money raised, getting the plaintiff whacked would be cheaper than letting the case get to court?

    Comment by Fred on 9 July 2009 at 00:02
  3. I can not stress how important the imunisation is.

    A bee in my bonnet is how whirlpool.net.au censors their posts.
    Anything remotely 'controversial' is being nuked by its horde of overzealous little Goebelses to protect Simons exposure.

    Had we had stronger protection, we could debate it as a free speech issue. As it is, its just a blanket censorship in its worst form.

    A forum, even if owned privately ought to use community standards for freedom of expression. Not the twisted perception of its owner (e.g.: One of the rules is that all Israel vs Palestine posts are deleted).

    Comment by Rootkitt on 9 July 2009 at 05:56
  4. Regarding comment 2 by Fred
    If getting this moron (Nolan) whacked was an option iy wouldn't cost a bean; there would be PLENTY of willing hands! :D

    (Dear Mr Nolan - please note: This was a joke, you do not have to get your lawyers involved! Moron.)

    Comment by and3w on 9 July 2009 at 18:14
  5. Just wanted to say, as the (long suffering :P) partner of the operator of http://www.zgeek.com, it's great to see this story getting out there.

    With the developments of this lawsuit becoming clearer we are struggling to understand how our responsibilities extend to cover each and every individual post on the website. But this seems to be the case. So now, as the volunteer operators of this web-based community, we are liable, financially and otherwise, because some people like to argue on the internet?

    It all just seems very wrong, and I can tell you that without the support of zgeeks community refusing to back down, we'd be very very broke by the end of it.

    At least now we know these issues exist and we'll be joining the campaign to amend these laws involving our online freedom and rights.

    Thanks again EFA!

    Elise
    aka Buffy

    Comment by Elise on 13 July 2009 at 23:37
  6. FYI, The trumped up extortion attempt levied against the Zgeek website was yesterday struck out in court.

    http://www.zgeek.com/forum/f60/update-in-the-zgee...

    Thanks for your support EFA

    Gabe
    aka dwarfthrower

    Comment by Gabriel Buckley on 15 July 2009 at 20:20
  7. Oh ow! Whats all this about?!

    (quote)

    Comment by Concern internet use on 16 July 2009 at 03:11
  8. Unfortunately it all got real serious, real quick. The courts have allowed Nolan to trawl through ISP records to try and identify people he thinks have defamed him. http://www.screenhub.com.au/news/shownewsarticleG...

    I'm not sure how this can be allowed; I mean, surely he has to show he WAS defamed before he can get ISP records to identify people, and this has not been shown by the courts. I don't get your Aussie law!!

    PS: Mr Nolan, you (or your sidekick, Greg Smith) named me in your papers - you want mine? [email protected]

    Have fun.

    Comment by and3w on 16 July 2009 at 10:34
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    Comment by Silver Jey on 22 September 2009 at 10:38
  12. By the way

    Comment by Flexpeletep on 5 November 2009 at 01:42
  13. @andr3w:

    Without having read the court order, I can't give you the reason for the court allowing Nolan to trawl the ISP records. My best guess from first principles is this:

    Defamation is a civil action, which means Nolan is looking for money ($42m, as it happens). Without someone to take the money from, you don't get the money. By trawling the ISP records, he finds the person he needs to face in court. They then get their day before a judge, and it is at this point that the matter of whether defamation actually occured is decided. (This is a simplified version of what occurs - there are all kinds of submissions and back and foward between lawyers, etc).

    While it is possible for a judge to grant an ex parte judgement (that is, when one party is not present for the hearing), a respondent would still have to be named for proceedings to occur.

    Comment by clever_user_name on 12 January 2010 at 07:12
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    Comment by DOROTHY on 3 April 2010 at 04:21
  16. Not sure if still going on I did find this Indie Defamation War: Nolan's discovery allowed, Smith's deferred so maybe it's good news... I think it's only fair if a site complies with a takedown notice then that should be the end of the matter;.

    Comment by LiliK on 22 December 2010 at 10:34