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Answered in 18 minutes by:
7/6/2009
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
Verified1) Who is liable if an insulting comment is posted?
A: Anyone who makes the defamatory statement would be liable, including the owner of the website.
2) Does it make a difference whether the person who makes the comment is anonymous as opposed to somebody who has a login name and is registered (and can therefore be traced)?
A: Yes, because you can't sue someone if you don't know who they are.
The owner of the website, however, would be known and would be liable for any defamatory material posted on his/her website, even if it is made by anonymous posters.
3) Is there a certain time where a defaming remark would need to be removed?
A: As soon as it is detected, and especially if someone brings it to the website owner's attention.
4) What specifically needs to be contained in a disclaimer to make sure I am not liable?
A: The one I use on my website is pretty good:
"The views and opinions expressed in posts on this site are exclusively those of the member who made them, and do not represent the views or opinions of this website or this website's owners. This website does not endorse any post, and makes no representations about the truth or accuracy of any matter contained in any post made by members of this site."
But these types of disclaimers are really a bluff, people can still sue you for defamation despite a disclaimer.
5) Is there a particular case in Australia relating to this? i.e. has a precedent been set?
A: The whole area of web defamation is something of an emerging field.
The truth is that defamation actions are very expensive to run, and accordingly they very rarely are.
If my answer has been helpful or informative to you, please hit the Accept button.
A: Anyone who makes the defamatory statement would be liable, including the owner of the website.
2) Does it make a difference whether the person who makes the comment is anonymous as opposed to somebody who has a login name and is registered (and can therefore be traced)?
A: Yes, because you can't sue someone if you don't know who they are.
The owner of the website, however, would be known and would be liable for any defamatory material posted on his/her website, even if it is made by anonymous posters.
3) Is there a certain time where a defaming remark would need to be removed?
A: As soon as it is detected, and especially if someone brings it to the website owner's attention.
4) What specifically needs to be contained in a disclaimer to make sure I am not liable?
A: The one I use on my website is pretty good:
"The views and opinions expressed in posts on this site are exclusively those of the member who made them, and do not represent the views or opinions of this website or this website's owners. This website does not endorse any post, and makes no representations about the truth or accuracy of any matter contained in any post made by members of this site."
But these types of disclaimers are really a bluff, people can still sue you for defamation despite a disclaimer.
5) Is there a particular case in Australia relating to this? i.e. has a precedent been set?
A: The whole area of web defamation is something of an emerging field.
The truth is that defamation actions are very expensive to run, and accordingly they very rarely are.
If my answer has been helpful or informative to you, please hit the Accept button.
If the remark went up at all, even for a brief period before you took it down - then yes, you would still be liable.
However, the damages would be very small if you can show you acted reasonably in the circumstances and and removed the defamatory post as soon as you became aware of it - especially if it is only up for a few minutes.
Q: How do people on websites such as eating review sites or any site where people can write reviews avoid being sued. Purely through a disclaimer (which you said is only a bluff)?
A: As I've said, defamation actions are very expensive to run - often the legal costs outweigh the damages received (if any) for the defamation. The only time it is worthwhile is when a big player is involved, ie. Channel Seven.
Q: Is there any legislation available for further reading or would you say I should be able to proceed with a website with reviews and just take on board your remarks?
A: Yes there is legislation, now uniform across Australia. But at the end of the day, the fact is if you act reasonably and remove defamatory content as soon as you become aware of it, then you are limiting your liability and the worst that would probably ever eventuate is that you get a threatening letter form a lawyer demanding you edit something someone may have said.
I own a chess website. As you can imagine the politics surrounding chess organizations sometimes gets quite heated, and regularly someone threatens to sue someone else for defamation. Over the years none of those threats have ever materialized into litigation.
If my answer has been helpful or informative to you, please hit the Accept button.
However, the damages would be very small if you can show you acted reasonably in the circumstances and and removed the defamatory post as soon as you became aware of it - especially if it is only up for a few minutes.
Q: How do people on websites such as eating review sites or any site where people can write reviews avoid being sued. Purely through a disclaimer (which you said is only a bluff)?
A: As I've said, defamation actions are very expensive to run - often the legal costs outweigh the damages received (if any) for the defamation. The only time it is worthwhile is when a big player is involved, ie. Channel Seven.
Q: Is there any legislation available for further reading or would you say I should be able to proceed with a website with reviews and just take on board your remarks?
A: Yes there is legislation, now uniform across Australia. But at the end of the day, the fact is if you act reasonably and remove defamatory content as soon as you become aware of it, then you are limiting your liability and the worst that would probably ever eventuate is that you get a threatening letter form a lawyer demanding you edit something someone may have said.
I own a chess website. As you can imagine the politics surrounding chess organizations sometimes gets quite heated, and regularly someone threatens to sue someone else for defamation. Over the years none of those threats have ever materialized into litigation.
If my answer has been helpful or informative to you, please hit the Accept button.
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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