Defamation Vs Free Speech

[Abo Bob]

I'm making this thread because I'm annoyed about knee jerk reactions and non coverage of legitimate issues due to fear and ignorance of the law.

The fact is that defamation law in Australia is a mess and favours the rich. I can't see a workshop spending $100,000 defending their reputation over something said on here although there are some stupid people out there who have wasted their entire not insignificant furtunes doing just that.

There is absolutely no reason why someone can't come on here and say XYZ shop built my engine and now it's broken. That is no more defamation than saying Prank looked at my car funny and now it wobbles.

If people stick to the facts and avoid making conclusions then you can't go wrong. Let the reader draw their own conclusions.

Here is an Australian perspective

http://www.uow.edu.au/arts/sts/bmartin/dis...defamation.html

And another

http://www.mds.rmit.edu.au/law/node4.html

This is a Canadian one. Canada inherited the same common law system that we did from the poms so it is reasonably relevant.

http://www.cyberlibel.com/libel.html

This is the Overclockers warning after the dramas that they had.

http://www.overclockers.com.au/defamation.shtml

Wrecked Head's recent thread about his blown engine was a great example of how with everyones help, potentially dangerous situations can be effectively managed so as to ensure no body felt the need to sue anybody for defamation.

I just wanted to say that self censorship through fear of the unknown sucks arse.

[Abo Bob]

This is the western australian case.

defamation.htm

[Rezz]

There is absolutely no reason why someone can't come on here and say XYZ shop built my engine and now it's broken. 

<{POST_SNAPBACK}>

Yep, so long as they stick to the facts... you should put that in massive capital letters so noobs don't forget! :lol:

It's a pity the real damage comes as a result of ordinary people jumping to conclusions... things can get very one sided very quickly.

[raz0r$harP.UK]

Any particular threads around Adam that you're referring to Adam?

After OCAU reopened way back when, they basically have gone with the 'no vendor verdicts allowed at all' policy. Which is a bit of a shame but I guess they are looking out for themselves.

I've got no problem with something like the wreckedhead / CRD topic - as both sides had their input. What I don't like is when ppl bandy around second hand opinions from people they don't know..

eg: "I heard that XXX are crap because I read that they fked around with someone's motor"

That should definitely be a no-no.

[Abo Bob]

There's a thread that was deleted by one of the mods that got me thinking about this but it's a perennial issue.

[Duncan]

Adam you may well be right but ultimately it's Christian's choice, the mods just implement his rules in what is a privately run forum.

And frankly if I was Christian I would have exactly the same poilcy. Even if the company complaining doesn't have much of a case behind them, who wants to have to defend themselves against this sort of thing all the time?

[Sumo]

People have also got to expect that nothing is bulletproof - once you start modifying cars that their is a big chance that something may fail. When something does fail, the blame is nearly always shifted back to the workshop.

Cheers

Sumo

[SKY031]

I find this very interesting too.

Someone has their car serviced regularly by ABC workshop......

They have never had any problems previously.

One day their car won't go, so they come on here and make a thread saying that 'i took my car to ABC workshop and now its rooted' ...the 200 people who just read the thread won't be taking their cars to that workshop anymore.., and they're going to pass the word on to all their mates, who pass it on to their mates etc etc.

What happens when the poster returns a week later and says "well nobody told me not to put a spanner between the battery terminals" ?

The workshop just lost a bunch of customers because some retard doesn't know which way is up.

If people think that a particular workshop/business has caused a problem, then they SHOULD let people know about it.... but make sure you can back up what you're saying.

I personally don't understand the fascination with name dropping...

If you have a problem with a workshop/business, wouldn't you want to try to deal with it discreetly?

Wouldn't the company want you to deal with it discreetly?

There is a very good chance that the workshop does not have an account here, and cannot answer to accusations... as such, posting it up here is a waste of time.

If you DO have a legitimate problem with a company, it really is best to go to the source of the problem or get yourself a lawyer to do it for you... rather than slanging off at companies over the net.

[blind_elk]

The truth can still be defamatory. If the statement lessens the reputation of the person / business about whom the statement is made, then the person making the statement can be guilty of defamation.

[Abo Bob]

No it can't. If ABC puts cheese in my engine and I say ABC put cheese in my engine then it might affect their reputation but because it's true then that is a legitimate defence to the defamation action.

Check the links and stuff I posted.

[saliya]

The truth can still be defamatory. If the statement lessens the reputation of the person / business about whom the statement is made, then the person making the statement can be guilty of defamation.

<{POST_SNAPBACK}>

Sort of.

In addition to being the truth, in QLD, Tas, ACT 'public benefit' is a requirement.

In NSW 'public interest'. However, I'd suggest that anything posted on a forum

for other forum member benefit satisfies those criteria, thus, as long as you

tell the truth (in those states) AND you're doing it for other member benefit

(i.e. your intention is not to simply have a whinge on a public forum) you should

be pretty safe from successful defamation action. Which leaves WA, NT, and Vic.

From http://www.asiamedia.ucla.edu/article.asp?parentid=29569 if correct,

we can assume that Vic doesn't regard truth alone as a defence as of 8th

Sep, 2005 (but that it will).

Vic's not mentioned in the EFA document directly, and WA and NT I haven't

read more specific information about. So if you're from those states, at this

time, and you want to post contentious material, I would get legal advice first

There are specific provisions in the Broadcasting Services Act that relate to

Internet Service Providers and Internet Content Hosts. In general, they

are not liable if they did not know about the content. So the "owner" of

the forum, the ICH, _should_ be fairly safe from unforeseen litigation (at

a minimum, the allegedly defamed party would have to notify Christian if

they wanted to join him as a defendant).

Posters, the _best_ thing to do is CYA. State the facts only,

and allow the readers to draw their own conclusions. If you are even slightly

worried about litigation, send a copy of what you intend to publish to

the party concerned, and ask them whether they have a problem with it.

If they do, ask them to justify their concerns, and see if you can address them.

http://www.efa.org.au/Issues/Censor/defamation.html

is a pretty good resource; in fact most things at efa.org.au are worth

having a read of.

Regards,

Saliya

[SKY031]

But how are we meant to determine if ABC really did put cheese in there?

ABC may be the cause of the cheese, but have you got proof?

You may just have a grudge against them, or want to blame someone else for the cheese that you left there yourself.

You picked the car up from the workshop, but on the way home you stopped at the shops.... the cheese could have been put there by any of the other 2,000 shoppers.... or the people at the "shop'n'wash" ....

I guess what I'm asking, is how can moderators determine what is true and what's not?

Anyone can post anything they want.

Unless people are willing to post Police reports to back up their allegations, why should they be permitted to post anything which may cause damage to another persons business/reputation?

...and again, it comes back to... why do people feel the need to name names?

If the complaint is legit, and ends up going to court, aren't you only giving the company leverage to protect themselves when the court finds out that you've been spreading allegations via media?

[SKY031]

Example:

http://www.skylinesaustralia.com/forums/in...showtopic=89700

How can we tell who is telling the truth?

One of them is lying.

Who is it?

[blind_elk]

No it can't.  If ABC puts cheese in my engine and I say ABC put cheese in my engine then it might affect their reputation but because it's true then that is a legitimate defence to the defamation action. 

Check the links and stuff I posted.

<{POST_SNAPBACK}>

It might be a defence, but it doesn't guarantee that you will be found not guilty.

Here's another link:

http://www.mds.rmit.edu.au/law/node5.html

where it states:

The essence of a defamation action is damage to reputation, not that the publication was untrue, or that it infringed on the privacy of the plaintiff.

[Abo Bob]

Defamation actions are civil so there is no guilty or not guilty.

The essence might be damage to reputation but you can legitimately damage someone's reputation with the truth.

[The_Paladin]

there's some great point being raised here from a lot of people.

So what would happen if it worked both ways. how would you react if you went to get your car worked on at YY and the workshop said "sorry, we're not going to deal with you because ZZ workshop said on the net that you were a bad customer" I wouldnt put up with that.........

[saliya]

But how are we meant to determine if ABC really did put cheese in there?

I guess what I'm asking, is how can moderators determine what is true and what's not?

Anyone can post anything they want.

Unless people are willing to post Police reports to back up their allegations, why should they be permitted to post anything which may cause damage to another persons business/reputation?

Anybody can tell lies. The idea is that if someone _does_ tell lies, there _are_ legal remedies.

Neither 'us' nor moderators can determine what is true and what is not (for a given value of 'true').

The issue here is one of where you could be telling the truth, but still found guilty of defamation.

That could stop people letting other members know of dodgy workshops or work, for fear of

legal action _even though_ it's true.

The moderators have a defence (they're an ICH, and not responsible for what people post if

they don't know about it).

As readers, we aren't posting anything, so there's no possibility of defamation on our part.

As writers, if 'we' post something that's not true, then we deserve to be jumped on.

As writers, if something's in the public interest/benefit AND it's true AND you're in

NSW/QLD/Tas/ACT then you're pretty safe from being found guilty of defamation.

Vic/SA/WA is another matter, though Vic is looking like moving directly to truth-is-a-defence.

Regards,

Saliya

[someonestolecc]

Thanks for the post Adam I think it's damn on the money.

Damn, there's a lot of people getting caught up in the thread here. The intention is to save other forum/club members money, time and energy that could be better spent.

I wish someone had warned me...

[Abo Bob]

Exactly.

[Abo Bob]

Well the Defamation Act (NSW) 1995 was just assented to this week so at least we will have some uniformity with regard to defamation law.

* Assented on 26/10/2005 - Act No 77 of 2005.

* See Digest 10 of 2005, dated 20/09/2005 for an examination of this Bill by the Legislation Review Committee.

Long Title

An Act to enact in New South Wales provisions to promote uniform laws of defamation in Australia; to repeal the Defamation Act 1974; to amend the Crimes Act 1900 in relation to criminal defamation; to amend the Limitation Act 1969 in relation to the limitation period for defamation actions; and for other purposes.

Explanatory Notes

Defamation Bill 2005

Explanatory note

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

In November 2004, the Attorneys General of the States and Territories agreed to

support the enactment in their respective jurisdictions of uniform model provisions

in relation to the law of defamation (the model provisions).

At the time of the agreement, each State and Territory had different laws governing

the tort of defamation. Tasmania and Queensland codified their civil law of

defamation. The other jurisdictions retained the common law, but supplemented or

altered it to varying degrees by enacting differing statutory provisions. The States

and Territories also had different laws governing the offence of criminal defamation.

In New South Wales, the civil law of defamation is predominantly governed by the

common law as modified and supplemented by the Defamation Act 1974 of New

South Wales. The law of criminal defamation is partly codified by Part 5 of that Act.

The Summary of existing defamation laws at the end of this Explanatory note

summarises the position in each jurisdiction in relation to the tort of defamation and

criminal defamation.

The object of this Bill is to enact the model provisions agreed to by the Attorneys

General of the States and Territories. The principal features of the model provisions

are:

(a) the retention (with some modifications) of the common law of defamation to

determine civil liability for defamation, and

(B) the abolition of the distinction at common law between slander and libel, and

© the creation of a statutory cap on the amount of damages for non-economic

loss that may be awarded in civil proceedings for defamation, and

(d) the enactment of provisions to facilitate the resolution of civil disputes about

the publication of defamatory matter without litigation, and

(e) the delineation of the respective roles of juries and judicial officers in the jury

trial of civil proceedings for defamation by limiting the role of juries to the

determination of whether a person has been defamed and leaving the award of

damages to judicial officers, and

(f) the abolition of exemplary and punitive damages in civil proceedings for

defamation, and

(g) the establishment of truth alone as a defence to a civil action for defamation,

and

(h) the imposition of a limitation period for civil actions for defamation of 1 year,

subject to an extension (in limited circumstances) to a period of up to 3 years

following publication.

etc. etc.

Not sure if this link will work but... http://www.parliament.nsw.gov.au/prod/parl...?Open&shownotes