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samjh
September 12th, 2007, 08:59 AM
This could have very severe consequences for the freedom of speech on internet discussion media.

http://digg.com/tech_news/Software_Company_Sues_Australian_Broadband_Site_Fo r_Forum_Comments

For those who don't know the site, http://whirlpool.net.au/ is the most prolific internet forum in Australia (and one of the biggest in the world) for internet-related topics. The site especially focuses on broadband internet services and technical help.

Should 2Clix be successful, this could set a legal precedent where an internet content provider or host could be liable for damages caused by contents posted independently by a third-party user. This obviously includes forums like Ubuntuforums.org and the variety of criticisms and opinions posted within.

It's an interesting case, but I hope Simon Wright is successful in his defence.

And just a request from the site's front page:

Simon Wright, the moderators and Whirlpool's legal team ask that users respect Simon's right to a fair trial and not prejudice his case. Users should refrain from doing anything that might expose Simon to contempt of court such as making statements that prejudge the outcome of the case. Please keep any comments polite and factual.

[EDIT]

2Clix has withdrawn its case against Simon Wright! Sanity prevails!

http://forums.whirlpool.net.au/forum-replies.cfm?t=834421

Dropbear
September 12th, 2007, 09:45 AM
Sounds like 2Clix's business is suffering and they are looking for a scapegoat.

mostwanted
September 12th, 2007, 10:08 AM
Should 2Clix be successful, this could set a legal precedent where an internet content provider or host could be liable for damages caused by contents posted independently by a third-party user. This obviously includes forums like Ubuntuforums.org and the variety of criticisms and opinions posted within.


No, it doesn't. Australian law is not applicable anywhere but Australia.

samjh
September 12th, 2007, 10:18 AM
No, it doesn't. Australian law is not applicable anywhere but Australia.
Australia is a common law country and its precedents can be persuasive in other common law countries with similar legal policies, most often in Canada, New Zealand, and the United Kingdom, and somewhat less in Ireland, South Africa, and the United States.

Since Canonical is based in the UK, the potential is significant enough to warrant consideration.

A precedent does not need to be binding in order to be applicable.

If relevant laws and the material facts behind the reasons for a decision are sufficiently similar between this case in Australia, and a future case in the UK, the reasons for the decision may be used (and are often used between the above listed countries). Even obiter dicta (personal opinions or side-comments by a judge) can be pushed as persuasive, even though they are not binding precedents.

mostwanted
September 12th, 2007, 10:24 AM
Australia is a common law country and its precedents can be persuasive in other common law countries with similar legal policies, most often in Canada, New Zealand, and the United Kingdom, and somewhat less in Ireland, South Africa, and the United States.

Since Canonical is based in the UK, the potential is significant enough to warrant consideration.

A precedent does not need to be binding in order to be applicable.

Since all Commonwealth countries and former partly English colonies have separate legal systems based on completely different constitutions (or the case of the UK, lack of constitution), I find that hard to believe. You don't just adopt a decision from a country because it has a "similar" legal system (which isn't true either), that's complete bogus.

mips
September 12th, 2007, 10:26 AM
I don't think we have to fear for whirlpool if the judge is sound of mind.

My question is how could 2Clix be so stupid to even try this. They are doing themselves so much harm through this action. 2Clix is going to come off second best here, losing the case is not a big deal but all the negative PR is going to really hurt them.

mips
September 12th, 2007, 10:29 AM
Since all Commonwealth countries and former partly English colonies have separate legal systems based on completely different constitutions (or the case of the UK, lack of constitution), I find that hard to believe. You don't just adopt a decision from a country because it has a "similar" legal system (which isn't true either), that's complete bogus.

I agree with the above. We have a mix of English Common Law, Roman Dutch Law in use here. Secondly we have a constitution which is the highest law, something the UK does not have. Does Oz have a constitution just out of interest sake.

samjh
September 12th, 2007, 10:32 AM
Since all Commonwealth countries and former partly English colonies have separate legal systems based on completely different constitutions (or the case of the UK, lack of constitution), I find that hard to believe. You don't just adopt a decision from a country because it has a "similar" legal system (which isn't true either), that's complete bogus.
You may choose not to believe, but the fact is legal precedents from courts of former British colonies are used as part of persuasive argument. This mostly involves precedents from the UK used in former British colonies (the most prolific of such a precedent is Lord Atkin's "love thy neighbour" principle applied in Donoghue vs Stevenson (http://en.wikipedia.org/wiki/Donoghue_v._Stevenson), which has been re-applied to nearly every personal injury case in British Commonwealth countries since its judgement until today, despite its age and what some people consider its obsolescence). However, UK courts will occasionally use precedents from its former colonies or countries with similar legal systems, mostly from Australia, Canada, and Ireland.


Does Oz have a constitution just out of interest sake.Yes.

By the way, the UK also has a constitution, but it is not codified into a single document. Instead, it comprises of a variety of written documents (eg. Magna Carta), conventional rules, and Acts of Parliament.

lisati
September 12th, 2007, 10:33 AM
I read the "Statement of claim" and hope that the case gets thrown out - it's ridiculous.

kanem
September 12th, 2007, 10:38 AM
This has already been played out in the US. The blogger wins, the judge threw the case out. So we don't have to care what Commonwealth country said what about this. US has already set it's own precedent.
WSJ article (http://online.wsj.com/public/article/SB112541909221726743-_vX2YpePQV7AOIl2Jeebz4FAfS4_20060831.html?mod=blog s)
Site that some stupid company tried to sue (http://www.seobook.com/archives/001130.shtml)

samjh
September 12th, 2007, 10:46 AM
If Simon Wright's lawyers do a decent job, then they will probably take a look at that judgement and see if it is applicable to Wright's defence.

PartisanEntity
September 12th, 2007, 11:07 AM
I remember a similar case some years ago in the USA, hopefully this too will not go through. The idea just doesn't make sense at all.

curuxz
September 12th, 2007, 11:25 AM
The comments about OZ law effecting UK law are quite right, often the UK legal system looks to rulings in either canada or oz as a reflection of what should happen here since the legal systems are so similar.

This does not mean that they are in any way binding here, but it could be either used to guide a judge on a case here or more likely prompt parliament to legislate so as not to encounter the same legal challenge.


I believe in the USA when a similar case came up they were ruled to be carriers like the postal service and not liable for the messages.

Most sites and forums have legal statements that absolve liability or pass it to the users. If they had that then they would have nothing to worry about.

mostwanted
September 12th, 2007, 12:18 PM
You may choose not to believe, but the fact is legal precedents from courts of former British colonies are used as part of persuasive argument. This mostly involves precedents from the UK used in former British colonies (the most prolific of such a precedent is Lord Atkin's "love thy neighbour" principle applied in Donoghue vs Stevenson (http://en.wikipedia.org/wiki/Donoghue_v._Stevenson), which has been re-applied to nearly every personal injury case in British Commonwealth countries since its judgement until today, despite its age and what some people consider its obsolescence). However, UK courts will occasionally use precedents from its former colonies or countries with similar legal systems, mostly from Australia, Canada, and Ireland.

I have no trouble believing the first point, as the British empire was basically still in the process of desolving in 1932. You can look up the respective countries on Wikipedia and look up their numerous declarations of "independence", most of which are - in fact - dealing with the dissolving of old British law hegemony.

As for the second point: [citation needed]


By the way, the UK also has a constitution, but it is not codified into a single document. Instead, it comprises of a variety of written documents (eg. Magna Carta), conventional rules, and Acts of Parliament.

A protected document that stands above other laws and which defines the boundaries of the rights of government and people - that is what I would call a constitution! The set of laws and customs in its place... is a set of laws and customs in its place.

curuxz
September 12th, 2007, 01:26 PM
A protected document that stands above other laws and which defines the boundaries of the rights of government and people - that is what I would call a constitution! The set of laws and customs in its place... is a set of laws and customs in its place.

I agree the UK does NOT have a constitution, since we are still technically a democratic monarchy we dont really need one, if we ever became a republic then we would most likely have to write one, and no doubt it would be totally against British culture but thats another story. I wish we had a French style constitution that protects the native culture and ideals against anything.

hanzomon4
September 12th, 2007, 03:06 PM
This has already been played out in the US. The blogger wins, the judge threw the case out. So we don't have to care what Commonwealth country said what about this. US has already set it's own precedent.
WSJ article (http://online.wsj.com/public/article/SB112541909221726743-_vX2YpePQV7AOIl2Jeebz4FAfS4_20060831.html?mod=blog s)
Site that some stupid company tried to sue (http://www.seobook.com/archives/001130.shtml)

Umm, No we have had cases were bloggers have loss in court. A New Orleans woman, Carey Bock, was sued for defamation for posting that Sue Scheff(A phony child advocate) was a fraud. Basically Mrs.Scheff claimed to help parents find non-abusive program placements for Troubled Teens through her company P.U.R.E. She said that she wasn't paid to make placements and inspected all the facilities she referred parents to.

She started her company after pulling her daughter from a program run by The World Wide Association of Specialty Programs and Schools(wwasps). WWASPS programs are considered to be the most abusive programs for teens today and is facing a class suit that alleges horrific acts of torture.

A while after Scheff started PURE she started to flooded websites and forums with complaints regarding WWASPS. So WWASPS sued her for defamation. In the trial it came out that Scheff did in fact recive money from the programs she referred parents too and that even after pulling her daughter from a WWASPS program and starting PURE she continued to refer parents to WWASPS programs for money. She only started her online campaign against WWASPS after the business deal they had went sour.

During the trial Carey Bock, who had been friends with Scheff, sold her computer to WWASPS which contained many private emails with Scheff and others. Scheff was pissed, but ultimately she won her the case. Her reputation as an advocate was shot however.

Bock and other parents who dealt with Scheff went on an online forum and called her a fraud. They called her a fraud because she lied about her education, lied about not accepting money from programs for placements, and knowingly sent kids to abusive programs where many were abused.

So Scheff decides to sue Carey Bock for defamation(same thing she was sued for by WWASPS). All of Mrs.Bocks claims were backed up by other parents, the WWASPS v PURE court transcripts, and Bock's own experience with Scheff. Mrs.Bock was going to win the case.

But Katrina hit, damaging Bock's house. Some how Bock was never notified when the case was to begin and failed to show up. End result Scheff one by default(technically it was verdict) an 11 million dollar judgment.

Scheff however is now being sued for.... fraud (http://www.sueschefftruth.com/?p=11) by a family she referred to an abusive program. Scheff has also been on a media campaign (http://www.reason.com/news/show/122156.html) to paint her self as a victim of internet abuse. She's hired Reputation Defender to push down negative stories about her and to threaten web host (http://www.sueschefftruth.com/?p=12) that contain negative comments about her(I've seen the emails). She has also gotten Digg to ban users who post negative news stories about her.

Bock has filed an appeal and I hope she wins, she would have won had she shown up to court.

justin whitaker
September 12th, 2007, 03:21 PM
Since all Commonwealth countries and former partly English colonies have separate legal systems based on completely different constitutions (or the case of the UK, lack of constitution), I find that hard to believe. You don't just adopt a decision from a country because it has a "similar" legal system (which isn't true either), that's complete bogus.

They all have different Constitutions, but Common Law countries have used precedents from other Common Law countries to decide cases: Australian and Canada have used UK Common Law in areas where the local law is deficient, and the US has, on more than one occassion, availed itself to the Common Law as well.

My Lexis password has expired, otherwise I would cite.

Also, there is some reciprocity of law based on Treaty....that is why American IP holders can assert their claims in, say, the UK, even when there isn't the same sort of protection there.

So no, it's not completely bogus.

kanem
September 12th, 2007, 10:52 PM
Umm, No we have had cases were bloggers have loss in court.
Umm, no the story you posted is irrelevant to this thread. She was being sued over things she actually said or posted. The article the OP linked to is about a blog getting sued because of comments that other people, not the blogger, posted in the blog's comment section. Like if someone tried to sue Canonical for comments I make here, or someone suing Slashdot for all of the slanderous and semi-legal things that are posted there.

Dylnuge
September 13th, 2007, 03:53 AM
I disagree with kanem. The rest of the world has signifigance too-not everyone on the Internet lives in the US-at least, that was the first thing I thougt. Noticing you live in London, I then assumed that you believed for some reason that Australia's decision does not matter if the US made one.

I hope Australia goes the same way. If you can sue forums for letting people post about dislking your products, where does it stop? Can you sue me for posting a poor review of a product on my own website? For using word-of-mouth to reduce your sales? For thinking your product is bad, ala Big Brother? For crying out loud, if a company doesn't want people to lower its sales by badmouthing its products, it should make good products. Just because selling a crappy, insecure, unstable product worked for Microsoft doesn't mean it has to work for the rest of the world. The ironic thing is that this will improve their sales, if anything, by attracting publicity. Who was it who said that there was no such thing as bad publicity? Or is it just one of those common sayings?

-Dylan

PS: I don't live outside the US, but I have respect for other countries and their policies.

PPS: I don;t count winning a case by default as a real victory or decision on what the law says. And like I said about free speech, I don't think that people should be sued for the things they say on the internet. (If a credible source makes out a lie to be fact, thats slander/libel (depending on where it is printed), which is a civil offense. If someone voices their opinion, and does not explicitly make out something to be a fact, it is not. IE: If I write that blah had a child on my website, and they didn't, its a lie, and slander, because there is no way it was just opinion. If I am a huge and credible source, I could get sued for calling someone a fraud, unless I explicitly made it my opinion or proved it to be true. However, if I say I hate their products/guts/whatever, it is perfectly legal. (On the other hand, threats are illegal, and so on. Hard to draw a line).

kanem
September 13th, 2007, 01:49 PM
I disagree with kanem. The rest of the world has signifigance too-not everyone on the Internet lives in the US-at least, that was the first thing I thougt. Noticing you live in London, I then assumed that you believed for some reason that Australia's decision does not matter if the US made one.
By no means did I mean to imply that since the US already has a verdict it doesn't matter what the rest of the world does. Sorry if it sounded that way (and looking at it now, it does seem to say that). Just wanted to point out that the result of this Aussie case likely won't affect any US hosted forums (and at the time I mistakenly believed that ubuntuforums was still hosted in the US).

Dropbear
September 13th, 2007, 05:40 PM
I visit the whirlpool site most days since I discovered it over 2 years ago. It is truly a treasure trove of information on broadband and anything internet particularly for Oz.
A large proportion of the posters in the forums there appear to be IT professionals, technicians plus a fair share of jerks.
They are very critical of everything and will tear apart any company or product that they have a problem with.
I think 2Clix have taken the loser's approach to this problem. Would have been better to respond to their customer's concerns, fix the problems and let the threads die a natural death. What they've done now is drawn attention to unfavourable publicity.

mips
September 13th, 2007, 09:04 PM
I think 2Clix have taken the loser's approach to this problem. Would have been better to respond to their customer's concerns, fix the problems and let the threads die a natural death. What they've done now is drawn attention to unfavourable publicity.

I agree. Some companies try and silence the critics when their service is shite and this is the wrong way to go about things. Rather adress the problems and fix them than try and silence your clients or the medium they use.

Dylnuge
September 13th, 2007, 11:39 PM
Agreed. Altohogu I don't exactly agree with the unfavorable publicity. Sure, people who were possibly considering 2Clix before the case may drop them as a possibility, but I think more people will know about them as a result of the case. Of course, it is not the best publicity, but, for example, they can't lose my sale (since I never heard of them before), but if even 1 out of every 100,000 people who hear about them find out more and use them, that's 1 sale gained for 0 sales lost.

Niall Stephen
September 14th, 2007, 02:46 AM
I hope 2Clix don't win. Because if they do we consumers won't be able to complain online about an awful lot of products we buy or use ... because forum owners will moderate our gripes out of existence for fear of being sued. Find a fly in a can of soup ? Buy a new car and find out it's a lemon ? Which forum owner would be brave enough to host your comments when threatened by the might of huge multi national companies, each with large budgets set aside for lawyers and with this precendent set if 2Clix win ?

I agree with the OP. It's a hugely important case.

And especially in the British/Commonwealth legal system. I don't know why that is. I always just assumed that because Queen Elizabeth is head of state in UK, Australia, Canada, NZ & the rest and that "The Crown" is the ultimate legal authority that all judgements in her name in one country could be considered & in effect applied in another.

KiwiNZ
September 14th, 2007, 03:08 AM
This is why we have rules ;)

Janusian
September 14th, 2007, 01:49 PM
This is totally daft. It is basically saying, if I sat in a pub and bad mouthed a company, then they could sue the pub.

Dylnuge
September 14th, 2007, 07:00 PM
Agreed. They are basically suing because someone used the power of free speech in a place owned by someone else. It is like the pub example, but even if they were suing you, for saying whatever, it would be dumb.

2clix is about as likely to win as SCO was to shove their GPL unconstitutional arguments down anyone's throats. (Which, by the way, is next to being as likely as being struck by lightning three hundred times in the same week, but not the same storm, having a vending machine dropped on your head from an airplane, and then winning the lottery.)

samjh
October 7th, 2007, 05:59 AM
Update!

2Clix has withdrawn its case. :)

http://forums.whirlpool.net.au/forum-replies.cfm?t=834421

Notch one for free speech!

helane
October 13th, 2007, 09:46 AM
well, great they did... but for me even just a thought that people try to do it is terrifying. probably somebody will try to do it again. what is next? i have already heard about a prof losing his job because he criticized somebody. the idea of control - everything and everybody makes me nauseous. what is happening with the world? :(