Internet discussion forums: eternal vigilance the price of freedom? by the amazing Craig Subocz RUSSELL KENNEDY SOLICITORS
The popularity of blogs has captured the attention of the online community. However, this attention tends to neglect other forms of online interactive discussion. Discussion forums reflect the pre-world wide web ‘bulletin boards’, which were popular through their encouragement of interactive discussions between people who shared a common interest.2
Often, discussion forums are maintained by volunteers who ‘moderate’ posts submitted to the forums to ‘keep the peace’. Well-run discussion forums encourage lively debate on topics of interest to the participants; others may not be maintained and vanish into obscurity as participants lose interest and drift away, or end in slanging matches.
However, given that these forums discuss topics of interest to many people, entities subjected to such discussions are keenly monitoring online forums to enforce their rights against the forums’ operators when necessary.3 This article illustrates key points about moderators’ potential liability if they fail to comply with their legal obligations. It briefly summarises the key characteristics of a typical discussion forum, then highlights five legal issues that confront moderators. It concludes with a number of guidelines to help moderators minimise the potential for liability.
A typical discussion forum
Sport is often interesting as a topic of debate among participants in a forum. For example, each club in the Australian Football League has an ‘unofficial’ discussion forum devoted to discussing its club’s fortunes.4 Other forums may discuss topics such as politics, music, software and even parenting.
Generally, an applicant for membership of the forum must nominate a user identity (ID) and password, and accept the terms and conditions of use. The applicant is verified through the clicking of an automatically generated link sent to the person’s nominated email address. Once verified, the user may participate. More exclusive forums require applications to be verified by a moderator before acceptance. Forums might restrict membership to applicants sponsored by current members.
Once a member, the person may participate in any of the forum’s discussions. Moderators constantly review new threads and new posts in order to detect any problems that might arise, and to keep the forum ‘clean’.
A survey of the legal issues arising from forums
There is a number of legal issues arising from the operation of forums. These issues include:
• infringement of a third party’s copyright;
• defamation of a third party;
• religious or racial vilification of a third party;
• compliance with Australia’s privacy laws regarding the collection, and so on, of individuals’ ‘personal information’; and
• disclosure of confidential information.
Copyright
An important issue that moderators face is the issue of the infringement of a third party’s copyright. Users often post links to materials uploaded to servers not affiliated with the discussion forum or its moderators, where third parties own the copyright in the materials. This may expose the moderators to liability for copyright infringement.
In Universal Music Australia Pty Ltd v Cooper,5 Cooper operated a website in Australia that provided links to digitised sound recordings, the copyright in which was owned by the 31 applicants.6 They argued that Cooper authorised others to infringe their copyright.7 Cooper relied on statements on his website, which disclaimed any responsibility for or control of the sites linked from his website, and asserted that the user took full responsibility for downloading a song to which his website linked.8
At trial, Tamberlin J rejected the applicants’ argument that Cooper had directly infringed their copyright by linking to the digitised files containing the infringing sound recordings.9 However, his Honour found that those websites, to which Cooper linked, had made available online and electronically transmitted infringing copies of the applicants’ sound recordings to the public.10
Tamberlin J found that Cooper had authorised copyright infringement by providing links to digitised files containing infringing sound recordings, notwithstanding Cooper’s disclaimers. His Honour commented that the disclaimers did not ‘amount to reasonable steps to prevent or avoid’ infringement, but indicated Cooper’s knowledge ‘of the existence of illegal MP3s on the internet’.11 Cooper’s failure to attempt to ascertain the legality of the files to which he linked meant he ‘abstained from action which … would have been reasonable to take’ and ‘exhibited a degree of indifference’, from which the authorisation of copyright infringement could be inferred.12 Therefore, Cooper had authorised copyright infringement by the internet users downloading files and the website operators who had made them available in the first place.13
The Full Federal Court of Australia dismissed Cooper’s appeal.14 Branson J considered that Cooper had ‘establish[ed] and maintain[ed] his website in a form which did not give him the power immediately to prevent … internet users from using links on his website’ to download infringing copies of the applicant’s sound recordings.15 Kenny J held that the website’s ‘warning that some downloading could be illegal did not lessen the force of the invitation’ made by the website to use the links to download infringing copies of the sound recordings.16
The Cooper decisions are significant for moderators. Often, users post links to externally-hosted files, which may infringe a third party’s copyright. Cooper’s disclaimers were ineffective in defending the applicants’ contention that he had authorised infringement of their copyright. Both decisions emphasise that moderators must be vigilant in patrolling the activities of their users, particularly when users are posting links to external websites in the discussion threads.
Users often adopt ‘avatars’, which are small graphic files uploaded by the user to the discussion forum’s server and appear beside each post made by that user in the discussion forum. Where the user has simply taken a graphic file from an external party, it is unlikely that the user is licensed to use the graphic file for this purpose. This may infringe the owner’s copyright. Therefore, moderators should consider disabling users’ right to use avatars so as to not authorise their users’ copyright infringement.
Often, discussion forums allow users the ability to ‘quote’ previous posts as part of the latter user’s new post. If a user exercised sufficient skill and labour in creating an original post, then under the Copyright Act 1968 (Cth), copyright subsists in the post and vests in the user who submitted the post to the forum. Therefore, ‘quoting’ the earlier post reproduces a copyright-protected work. Unless the moderators have carefully drafted the forum’s terms of use, this may infringe the earlier user’s copyright.
Defamation
Moderators should be careful that their forums’ users do not post anything that might be defamatory. Gina Ford, a former maternity nurse who wrote several books on raising young children, threatened legal action for defamation to disable a forum specialising in the discussion of child-rearing techniques, in which several allegedly defamatory posts had been made.17 It is clear that after Dow Jones & Co Inc v Gutnick, Australian courts will recognise that, where the elements of defamation have been satisfied, the fact that the defamatory material is online will not alter the court’s conclusion that a person has been defamed.18
In Godfrey v Demon Internet Ltd,19 the defendant was an internet service provider that carried Usenet. Usenet enabled authors to publish posts on any number of topics, grouped by particular subjects in ‘newsgroups’, and disseminated on the internet by internet service providers.20 The plaintiff detected posts to a particular newsgroup that he was purported to have written, but were actually forged, and were defamatory of the plaintiff.21 The plaintiff demanded in writing that the defendant remove the posts from its Usenet news server.22 The defendant did not, and they remained available through the defendant’s service until it expired, two weeks after it was posted.23
Morland J upheld the plaintiff’s claim because the defendant failed to remove the offending post once notified.24 His Lordship rejected the defendant’s argument that it merely owned an electronic device through which postings were transmitted, finding instead that the defendant chose to store the newsgroup postings on its computers, and therefore could delete the defamatory post once notified by the plaintiff.25
According to Australian common law, ‘innocent dissemination’ of the defamatory publication, available to ‘subordinate distributors’, is a defence to defamation.26 A ‘subordinate distributor’ must show that it did not know the publication contained defamatory matter, that such ignorance was not due to any negligence, and that there were no grounds to suspect that the publication was likely to contain defamatory matter.27
However, in Thompson v Australian Capital Television Pty Ltd, the High Court of Australia found that, while the defendant did not control the defamatory material, this was due to the defendant’s broadcast configuration. So, the defendant could not use the innocent dissemination defence.28 Furthermore, in several states, legislation has replaced the common law, narrowing the ‘innocent dissemination’ defence.29
Once the forum’s moderators become aware that defamatory material has been posted to the forum, the moderator is under a duty to remove the defamatory material as soon as possible.30 Once moderators who can remove defamatory material have been notified of its existence and have been requested to remove it, they are potentially liable if they fail to do so within a reasonable period of time.31
Religious and racial vilification
The Racial and Religious Tolerance Act 2001 (Vic) prohibits a person from:
… on the ground of the religious belief or activity of another person or class of persons, engag[ing] in conduct that incites hatred against, serious contempt for, revulsion or severe ridicule of, that other person or class of persons …32
In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc,33 the Islamic Council of Victoria alleged that the ministries had breached the Racial and Religious Tolerance Act by publicising on its website an article entitled ‘An insight into Islam by Richard’, dated 24 September 2001.34 Nettle JA found that the nature of the audience to whom the conduct was directed was a factor in determining whether the conduct constituted incitement.35 Therefore, publishing statements generally, for example, by ‘posting on a web site’ may breach s 8 of the Racial and Religious Tolerance Act, whereas saying the same thing ‘as part of intellectual discourse within a seminary or faculty of theology’ may not.36
As noted above, discussion forums are generally only available to users once they agree to a series of terms and conditions, and access may be further restricted in the manner described above. Therefore, some discussion forums might be easily accessible to any person who wishes to obtain access. Others, however, may not be so accessible and therefore the materials published on the forum are disseminated to a much more exclusive audience.
Nonetheless, this is only one of the factors in determining whether the conduct breaches the Racial and Religious Tolerance Act. Clearly, if a discussion forum is established for the purpose of inciting hatred against a particular ethnic group, then regardless of the fact that the forum is exclusive to members that share the same views as the forum’s moderators, if the other factors are established, then the moderators will be liable for a breach of the Racial and Religious Tolerance Act.
Australia’s privacy laws
On 21 December 2001, the 10 National Privacy Principles (NPPs) became effective for bodies other than Commonwealth departments under the amendment to the Privacy Act 1988 (Cth). The NPPs deal with the collection, use, and disclosure of ‘personal information’, data quality and security, access and correction, identifiers and anonymity, and transborder data flows.37 The Privacy Act defines ‘personal information’ as:
… information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.38
The Privacy Act applies to ‘organisations’. Individuals, bodies corporate, partnerships, unincorporated associations, and trusts may all be ‘organisations’.39 However, the Privacy Act applies only when then the ‘organisation’ has an annual turnover exceeding $3 million.40 If the Privacy Act applies, the ‘organisation’ must prepare and make available a privacy policy which set out clearly expressed policies on its management of personal information.41
The Privacy Act is therefore unlikely to apply to many moderators of forums, who volunteer their time to run the forum and generally earn little or nothing in return. However, if an entity uses a forum as a value-added service to promote goods or services bound by the Privacy Act, it may be required to make available a privacy policy which clearly expresses its policies on managing personal information collected through the forum.
When a user signs up to a forum, the user selects a username and supplies certain information to the forum’s moderators. If the user’s identity can be reasonably ascertained from such information, it may be ‘personal information’ under the Privacy Act. Therefore, if moderators must comply with the Privacy Act, they should establish a privacy policy clearly expressing their policies on managing personal information and comply with the NPPs’ requirements.
Disclosure of confidential information
In Australian Football League v Age Co Ltd,42 the Australian Football League (AFL) sought an injunction restraining the defendants from publishing the names of three AFL players who had allegedly twice tested positive under the AFL’s Illicit Drug Policy.43 Kellam J granted the injunction, rejecting the defendants’ argument that the players’ names had already entered the public domain because they had been posted by various persons to various internet discussion forums.44
After considering expert evidence concerning internet discussion forums,45 especially the capacity for anonymous or pseudonymous posts,46 Kellam J held that the lack of accountability in discussion forums meant that, if confidential information was posted to a discussion forum, it was unlikely to be in the public domain. To hold otherwise was to create an unrestrained ‘opportunity for [the] unethical and the malicious to breach confidentiality and then claim that there is no confidentiality’.47
His Honour distinguished between internet discussion forums, which contain unverifiable ‘speculation’, and publication of material by a newspaper, television station or ‘authorised web sites’ operated by media outlets. Kellam J considered that the latter sources were ‘accountable for the information they publish and are, to an extent at least, trusted by the public to report material … accurately’.48
It is, of course, difficult for moderators to police the forum for disclosures of confidential information. But the moderators should act quickly to remove posts that contain confidential information once their attention has been drawn to the fact that such information has been disclosed.
Guidelines for moderators
The above discussion highlights a number of lessons for moderators when operating their forums. This section outlines guidelines that may assist moderators.
Moderators should require users of their forums to agree electronically to the terms and conditions of use, regulating users’ forum interactions. Although so-called ‘browser-wrap’ contracts have not been tested in Australia, US case law gives useful guidance on how to maximise their effectiveness.49 In Feldman v Google Inc,50 the court enforced Google’s ‘Adwords’ program terms and conditions because it was clear that the advertiser could not proceed any further without positively indicating its acceptance of Google’s terms.51 Therefore, moderators should adopt a similar approach when presenting users with the terms and conditions of use of the forum when a user applies to become a member of the forum.
The terms and conditions should, as a minimum, contain the following provisions.
• A provision granting to the moderators either a licence or, preferably, an assignment of intellectual property rights in all posts, which then acknowledges that the moderators may sublicense the rights to other users.
• A provision granting moderators the right to edit or delete posts without infringing the user’s moral rights. This right is especially important because it will give the moderators the opportunity to remove posts that may be defamatory, or which may incite hatred in breach of the Racial and Religious Tolerance Act. Further, it allows moderators to remove any posts containing confidential information posted without permission. Having regard to Cooper, moderators should have the power to remove links to files that infringe a third party’s copyright.
• The moderators should make no guarantee as to the availability of the forum and reserve the right to disable the forum for whatever reason. This gives moderators the opportunity to take the forum offline to remove any posts which, for example, may infringe copyright or defame a third party. It also allows moderators time to deal with any technical issues that may arise in the operation of the forum.
• Inclusion of enforceable undertakings that the user will not infringe the intellectual property rights of any third party, defame any third party, or vilify or disclose any confidential information belonging to any third party. Moderators should emphasise in the terms that they have the power to suspend or terminate a user’s account if the undertaking is breached.
Nevertheless, it is clear that it is not enough for moderators to include these terms and conditions in their terms of use with the users of their forums. Moderators must enforce the terms and conditions where appropriate, to minimise the possibility that they have authorised copyright infringement or failed to respond to an assertion that they have continued the publication of defamatory material.
For moderators who are volunteers and simply run an online discussion forum in their spare time, this may be an issue, because it may not be feasible for the moderators to be online 24 hours per day, seven days per week to moderate what is being posted to the forum. However, provided that the moderators act reasonably quickly after being alerted to the issue, then it is less likely that a court will find adversely against the moderators.
Conclusion
It is increasingly clear that the internet is subject to similar laws to those that apply to any other medium of communication. Discussion forums provide a valuable opportunity for users to interact, but the users and moderators must be at all times cognisant of the laws governing such discussions. Moderators especially take on a large degree of responsibility for the conduct of the forum and they need to be clear as to the extent of their rights and obligations. l
Craig Subocz, Solicitor, Technology Law Team, Russell Kennedy Solicitors, Melbourne.
This article reflects the views of the author and not necessarily those of Russell Kennedy Solicitors. All errors and omissions remain the responsibility of the author. The author is indebted to the advice of Kent Davey, Partner, Russell Kennedy Solicitors.
Endnotes
See, for example, Artinian A and Shirm J ‘Blogger beware: IP and defamation implications of the popular online communications tool’ (2006) 9(8) Internet Law Bulletin 89.
See, for example, Sterling B The Hacker Crackdown: Law and Disorder on the Electronic Frontier Bantam Books, New York 1992. Sterling discussed the popularity of bulletin boards in the context of ‘hackerdom’ and noted in an electronically published afterword that in 1993, there were more than 60,000 bulletins boards in the US alone. See Sterling B ‘Afterword: the hacker crackdown three years later’, available at
(last visited 3 April 2007; copy on file with author).
See, for example, Blake M ‘Going spare in cyberspace’ The Saturday Age 10 March 2007, available at
A Man Without a Country
