Australian Online Forum Sued Because Users Wrote How They Didn't Like Accounting Software Package

from the safe-harbors-anyone? dept

Wed, Sep 12th 2007 10:23am — Mike Masnick

While there are lots of problematic laws when it comes to the internet, two things that the US got right (though, in otherwise troublesome laws) was putting in various "safe harbor" provisions that protect service providers from the actions of their users, whether it's for copyright infringement (in the DMCA) or libel (in the CDA). Folks in other countries aren't so lucky, leading to all sorts of questionable lawsuits that seem to be a lot more about silencing critics than dealing with actual libel or infringement. The latest such story comes from Australia. Reader technofear writes in to let us know that a popular Australian online forum (and the guy who owns it) is being sued by a software firm because a number of forum users posted negative reviews of their software -- which the firm considers defamatory. As the article explains, the software firm is going to have quite a difficult time proving the case, because the company would need to show the statements were false (pretty hard to do when they seem to be of the nature of "we threw it out recently... many hundreds of lost hours of work and high stress levels was not worth it") and that forum owner had malicious intent... and then also show that the company lost money due to these postings. However, in the meantime, the company can tie up the owner of the site in a costly legal battle. If there were clear safe harbors, it would be much easier to fight back and hope for a quick summary judgment throwing the case out. In the meantime, some folks are pointing out that, as should be expected these days, the accounting software that got all these awful reviews is getting plenty of attention, but all of it is associated with the fact that the product isn't very good and the company apparently doesn't handle criticism well. Perhaps next time the company will learn to engage and respond to critics rather than trying to shut them up by suing the site that hosted their complaints.

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Filed Under: australia, libel, safe harbors, service providers

16 Comments

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Dick Fer, 12 Sep 2007 @ 10:38am

Craigslist
This is similar to craigslist getting sued in Chicago because some users put real estate and/or rental listings that may (or may not) have been discriminatory. The judge threw out the case because Craigslist can not be responsible for the content posted by users.
In this case, if the user community wants to post opinions, that's up to them. If 2Clix doesn't like it, the host of the forum shouldn't be liable. 2Clix should engage in an active debate and attempt to engage the users and defend their reputation. Suing isn't the answer. Censorship isn't the answer.
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  Re: Craigslist
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Sanguine Dream, 12 Sep 2007 @ 12:46pm

Isn't it odd...
That whenever someone reads a negative review about their service/product the reaction is sue instead of proving the negative review wrong...
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Sanguine Dream, 12 Sep 2007 @ 12:46pm

Isn't it odd...
That whenever someone reads a negative review about their service/product the reaction is sue instead of proving the negative review wrong...
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- Truth, 22 Oct 2008 @ 8:08am
  
  Re: Isn't it odd...
  So agree with him
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Dogwalker, 12 Sep 2007 @ 1:16pm

The judge may have thrown out the lawsuit against Craigslist - but have you noticed the new pretty yellow banner warning about discriminatory ads since this lawsuit?
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Stuart, 12 Sep 2007 @ 1:48pm

Dont forget
Don't forget to /. em
http://www.2clixsoftware.com/
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- Anonymous Coward, 12 Sep 2007 @ 3:56pm
  
  Re: Dont forget
  Naa don't want to give them the free advertising.
  
  I'd rather put them in my host file 2clixsoftware.com 127.0.0.1
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technofear (profile), 12 Sep 2007 @ 9:10pm

2Clix can no longer win this...
It is worth noting that the major problem that 2clix had with the threads is that they show up as number 2 and 3 if you google '2clix'.

The offending Whirlpool threads are still at the top of the first page, but now multiple stories about the law suit are listed on the first page (and climbing).

So even if 2clix succeeds in getting them removed, it will no longer solve the issue. Potential customers will still see bad press about 2clix.
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NFG, 13 Sep 2007 @ 12:25am

Negative reviews illegal in Australia...
It's important to remember that Australia's legal history makes 2clix' position much more tenable than you might at first glance think. Consider the case of a food reviewer who was sued by a restaurant he unfavourably reviewed:

http://my.opera.com/NFGman/blog/idiocy-in-australia

The reviewer lost.

This case seems very similar to me.
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- Brad, 13 Sep 2007 @ 6:12am
  
  Re: Negative reviews illegal in Australia...
  The Whirlpool case is very different, 2Clix aren't going after the posters which have given bad reviews of their software, rather the owner of Whirlpool for not removing these reviews.
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- NFI, 13 Sep 2007 @ 6:54am
  
  Re: Negative reviews illegal in Australia...
  It is worth noting that the case of the reviewer against Coco Roco was under state-based defamation laws. In Jan 2005, new national defamation laws were put in place, preventing companies with more than 10 employees from suing for defamation. That's why 2clix is suing for "Injurious Falsehood", as opposed to defamation.
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  - Sanguine Dream, 13 Sep 2007 @ 7:38am
    
    Re: Re: Negative reviews illegal in Australia...
    "Injurious Falsehood"
    
    That sounds like a fancy legalize phase that basically translates into "lies that hurt me".
    
    When it comes to libel, defamation, slander,...etc. I thought the one suing had to actually prove that defendant knowing said false things about them.
    
    It sounds like businesses in Australia are a bunch of over sensitive pansies that cannot take critisism. Frankly I'd think twice about doing business with anyone that sues a critic/reviewer that gave them bad marks.
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    - Charles Griswold, 13 Sep 2007 @ 8:17am
      
      Re: Re: Re: Negative reviews illegal in Australia.
      "Injurious Falsehood"
      
      That sounds like a fancy legalize phase that basically translates into "lies that hurt me".
      I'm not a lawyer, but that sounds about right to me.
      When it comes to libel, defamation, slander,...etc. I thought the one suing had to actually prove that defendant knowing said false things about them.
      In the U.S., the legal definition of defamation is, essentially, "Injurious Falsehood" and truth is an absolute defense against accusations of defamation. In other countries, that may not be true. In Australia, according to the Victorian Electronic Democracy, defamation is "A communication that lowers the personal or professional reputation of a third party, ridicules them, or leads others to shun and avoid them."
      
      It would seem that, in Australia, truth is not a valid defense in cases like this.
      It sounds like businesses in Australia are a bunch of over sensitive pansies that cannot take critisism.
      Some of them, certainly. I wouldn't overgeneralize that to include all of them, though. If I did that, I might get sued. ;-)
      Frankly I'd think twice about doing business with anyone that sues a critic/reviewer that gave them bad marks.
      Well said.
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      - Ody, 22 Nov 2007 @ 8:51pm
        
        Re: Re: Re: Re: Negative reviews illegal in Austra
        In Australia, as best I have come to understand it, truth is not the deciding factor when determining defamation, but it can be an ameliorating factor. In other words, what a person says may be defamatory, but if it's shown to be true then it is a little less defamatory.
        Money is just a way of keeping score.
        
        Freedom of speech and opinion are not protected rights in Australia. Australians have no guarantees of civil or human rights (and being signatory to dozens of agreements and treaties is meaningless within the country too.)
        
        It's not surprising therefore that aussies are less cynical than most countries. -- More than 60% of Australians think their leaders are doing the best they can; as opposed to 38% in the US and UK. -- Aussies learn early what they can and cannot say.
        They just never hear the 'bad' stuff.
        
        Is this censorship? Yes. But the aussies have never known any other way.
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Ody, 22 Nov 2007 @ 8:59pm

RE Australian Online Forum sued..
The Whirlpool forums are the best source of timely technical information about the many broadband providers, their equipment and deployment.
It's a bastion of free speech in an otherwise silent landscape.

Therefore it is not surprising that the Whirlpool forums draw a lot of legal attacks from various parties. So far, Whirlpool has been able to turn away all of the suits. That won't last forever, of course.
A small lawsuit like this, which shouldn't involve Whirlpool in any way since the opinions were those of the users of the site - not Whirlpool management - could close the forums down.
The blame wouldn't be placed on the larger broadband ISP providers, who would love to see Whirlpool go off the Net, but on some distant, mercurial software manufacturer.

The idea that 2Clix did a shoddy job on their accounting software is inconsequential. The only thing that matters is Australia forbids naysayers. It's the word of law.
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