by Jeremy Malcolm, Internet lawyer
Another important legal case was handed down in the United States last month, this time about freedom of speech in Internet discussion groups. One of the important differences between Australian and United States law is that America has a written constitutional bill of rights, and Australia does not. As a result of that, we do not have general right to freedom of speech. What we do have is a right to do anything that the law does not prohibit us from doing.
Defamation is one of the restrictions that exists on freedom of speech both in America and here. For several years, there has been a question mark over the extent to which Internet users could freely express themselves in newsgroups and Web bulletin boards without exposing themselves - and indeed their Internet service providers - to the risk of being sued for libel (which is the written form of defamation).
In one well-known English case, an individual who had noticed a forged article posted in his name contacted his Internet provider and asked them to remove the article. They didn't remove it until it expired automatically about ten days later. The man in question sued them for defamation, and he won. This was despite the fact that the article didn't originate on the ISP's server and that thousands of articles passed through their news server every hour.
The more recent American case that I referred to above redresses the balance somewhat. A California Court of Appeal has now made it clear that in most circumstances, statements made in an Internet discussion forum - particularly an unmoderated one - should be construed as opinions, rather than as statements of fact. Under Americans law, this protects them from being the subject of defamation proceedings.
Although the law in Australia is a little different, this is still a welcome precedent which moves the law a bit closer to the Internet community's expectation of what it reasonably should be. You should however continue to be careful of anything you say about another person in an online forum, if you wish to avoid even being threatened with a defamation claim.