Getting sued for slander online

[namtrak]

I finally got around to reading Neil's message at the start of each forum, you know the one it goes

"To all members of Woodwork Forums.

If you intend to denigrate a business or person on these forums please think long and hard before doing it. You might also like to check with your lawyer and your accountant to see if you have enough money to fight the law suit that may ensue. It would also be a good idea .............."

I understand the premise for this and if I was in Neil's position I would do the same thing. However as a consequence of the web stuff I do I had to look into getting Professional Indemnity insurance, now that can be an expensive little beast I can tell you. I also did a little research and found out there has actually only been 1 case of slander on the internet in Australia and this was between 2 professors at a Uni in WA. I think the amount settled was for $40,000 which never changed hands.

I guess it's a case of the perception and the reality being quite disparate.


Cheers

[bitingmidge]

I guess it's a case of the perception and the reality being quite disparate.

Give it time.

Just because it hasn't happened to date doesn't mean it won't.

Nor does it mean that slander is justifiable.

Try making untrue or unjustified or even partially true comments about me THAT WOULD HAVE A FINANCIAL IMPACT ON MY BUSINESS and see whether there are two cases in Australia!! (tongue in cheek of course, but you see what I mean)

There is a difference I think, between describing poor service or quality of goods, particularly in a forum where the manufacturer/service deliverer is able to explain it's actions, and denigrating that person/company in a way which will cause actionable damage.

"XYZ" hasn't answered 12 emails I have sent, may not be slanderous and is subtly different to "XYZ" doesn't respond to emails which could be.

Risk may be minimal, but morally slagging off isn't on anyway!

Cheers,

P (who loves sticking it up 'em if they deserve it!)

[Grunt]

P (who loves sticking it up 'em if they deserve it!)
I bet you say that to all the boys.:D

[silentC]

OK, well let's take a review published in a magazine for example. The author takes four spokeshaves and lists the pros and cons of each. At the end he sums up by saying "spokeshave X" is the best value for money. Now technically, that review would impact on the business operations of the other three spokeshave manufacturers. People reading the review would be drawn towards buying spokeshave X instead of any of the other three. So does that leave the author of the review open to legal action?

[Iain]

Can we take it a step further, I am in the market for a new car and take a Falcon and a Commodore for a test drive, I then buy the Commodore.
Even without comment this could be viewed as denigrading the Falcon.
As for authors on tool reviews I thought that this was to viewed as an opinion, not fact.
Incidentally I would not have a Holden or a Ford in my garage and I've just left myself wide open, and Hyundai can now sue me for not giving them the chance to allow me to appraise their product.

[Zed]

OK, well let's take a review published in a magazine for example. The author takes four spokeshaves and lists the pros and cons of each. At the end he sums up by saying "spokeshave X" is the best value for money. Now technically, that review would impact on the business operations of the other three spokeshave manufacturers. People reading the review would be drawn towards buying spokeshave X instead of any of the other three. So does that leave the author of the review open to legal action?

No

so long as your review is based on documented evidence and has fair and just outcomes they you're apples - why do you think the NRMA crash test and choice magazine get away with it ?

intangables such as "look & feel" need to be accounted for, as does "past performance on previous models"

it also depends on who you are - it you are johnny nobody and you say this plane is crap then who gives a rats? if you are Choice Mag's woodwork reviewer then it has a whole new connotation dunnit ?

besides if you give your spokeshave to someone to review against someone elses you have to be prepared to take the hit if yours is the "crappo" one... yours could be crappo because you had to make some financial considerations on cost to produce v's sales price v's market share v's anything else.... look at the hare and forbes v's shepparch v's felder v's etc... same role - diff price etc.

I recently bought a kunz metal spokeshave and im routed if I can stop the bugger from chattering - yet I got a muji for $20 and its a dream. go figure...

[Sturdee]

Namtrak,

There is a big difference between slander and libel. Not only in what it is but also in the degree of difficulty of proving it in court. And ofcourse the law on slander and libel is different in each state. :(

Whilst slander is difficult to prove and must have been made on their own websites libel is very easy and the person that would get sued is the publisher of the libel, namely Ubeaut.

To avoid Ubeaut having to pay up for a members libellous remarks, seeing that they don't pre read and approve before posting ( publishing) such remarks, they warn us that in terms of the agreement we all entered with them, we will be required to idemnify them for any losses. This would normally be by being made a party to the libel case.

Having once, in a previous life, being involved with sueing that well known newspaper ' The Melbourne Truth " for publishing libellous remarks whilst quoting a correspondent I can say that in Victoria it is not difficult.

Remember that in a libel case (in Victoria and that is where publishing on this board legally takes place) the truth is no defence as such. What you may say may be true but still libellous.

Therefore it is wise to heed this warning and be sure that when you post libellous remarks you have the wherewithal to defend yourself.

Peter.

[Grunt]

You are all smelly.

Now sue me.

[Iain]

Having once, in a previous life, being involved with sueing that well known newspaper ' The Melbourne Truth " for publishing libellous remarks whilst quoting a correspondent I can say that in Victoria it is not difficult.
Is that grubby little rag still in existence?
They used to pester me to advertise with them, my comments where that I spent years building a reputation and did not want to destroy it in one issue.

[namtrak]

I guess the point is that websites like crikey.com.au or whirlpool.net.au are a lot more open to litigious type activity given their propensity to bad mouth everybody, and yet even with that, there hasn't been a case in Australia of note.

Furthermore, Namtrak is a dirty rotten bearded scoundrel, he can't sand wood to save himself and the furniture he makes is positively dangerous.

Now, can I make a bit of dough off myself?

[silentC]

So, if I get on here and say supplier X is much worse to deal with than supplier Y, or supplier X seems to employ idiots with no idea about the products they sell, even though this is clearly my opinion, am I making a slanderous or libellous statement? Do I need a disclaimer that says "all opinions expressed by me are my opinion and not necessarily backed up by facts or evidence of any kind". Would this even make a difference? Where do you draw the line between providing an opinion or communicating experiences to other members when the opinion or experience is negative? Do we just shut up and only say nice things? What if I say "I reckon OzWinner is a crap bricklayer and he should stick to making antiques?" Two inflammatory remarks in one sentence, can he sue me? I want half if you do Al, but half of nothing is nothing :D

[Iain]

Furthermore, Namtrak is a dirty rotten bearded scoundrel, he can't sand wood to save himself and the furniture he makes is positively dangerous.
Problem here is that everyone may agree with you and leave you with no avenue to rort the system :D :D :D :D

[simon c]

To be slanderous or libelous, comments have to be false and either malicious or it could reasonably have been expected to cause harm (ie they either were intended to harm or a reasonable person would expect them to cause harm). The harm can be financial or reputational. It is not the same as denigrating somebody. Denigration is only libelous if it is false.

Sturdee, I understood that something that could reasonably be believed to be the truth is not libelous, but you appear to have some extra information/experience?

It is quite acceptable to say somebody's service is crap if it was crap and you can demonstrate that a reasonable person would interpret the level of service you received as crap service.

Certain aspects are implied, ie if you undertake a review and say that item a is better than item b then it is implied that it is your opinion, becuase that is what a review is. However, if you base that opinion on inaccurate or badly researched information, it could be libelous.

So, tell the truth but make sure that what you quote as the truth is something that a reasonable person would believe to be true (not just cos somebody else told you)

[craigb]

Geez, aren't lawyers into woodwork?

If they were, we would have the definitive answer by now. :D

Doesn't a review come under the heading of "fair comment" ?

[silentC]

What about "Don't buy Digitrex"? Is that OK?

[bitingmidge]

Geez, aren't lawyers into woodwork?

If they were, we would have the definitive answer by now. :D


No we wouldn't, just an account to pay into the trust account to cover their costs for time spent thinking about whether they should risk giving an opinion or whether they may or maynot have a conflict of interest.

P(Who's probably about to get sued by the law society for that!)

:D :D :D

[DavidG]

After reading all that my head is spinning.

I'll go back to the old way and apply rule 303.

[craigb]

What about "Don't buy Digitrex"? Is that OK?

No. Apparently you should never buy Digitrex :D

[Sturdee]

I guess the point is that websites like crikey.com.au or whirlpool.net.au are a lot more open to litigious type activity given their propensity to bad mouth everybody, and yet even with that, there hasn't been a case in Australia of note.



Namtrak,

Crikey.com.au lost a case about 2 years ago when it libelled on its website a Sydney Radio shock jock. Cost to them about $ 150K. They had to sell their house over it.


Peter.

[namtrak]

Namtrak,

Crikey.com.au lost a case about 2 years ago when it libelled on its website a Sydney Radio shock jock. Cost to them about $ 150K. They had to sell their house over it.


Peter.

Are you certain? They had a legal statement on their website about 2 months ago saying that they had never had any action taken against them

[Sturdee]

Is that grubby little rag still in existence?



Don't know, but they were in 1978, when they libelled the company I was working for.

We settled the case and it cost them $ 50k . Worked out quite well for the publicity, although libellous, brought us much more business. :D


Peter.

[silentC]

There is no such thing as bad publicity...

[Sturdee]

Sturdee, I understood that something that could reasonably be believed to be the truth is not libelous, but you appear to have some extra information/experience?



As I was told, by the QC acting for us at the time, a defence of truth in a libel case is not sufficient by itself. They have to prove that the libel was in the public interest.

One example is the case of Joh Bjelke Peterson against Bond media was defended on the grounds of truth. Result they lost and Bond paid over $ 400 k.

Often I read posts on this board that IMO are libellous ( the don't buy of Digitrex for example or the rants against Carbatec ) and I think that they are lucky that they don't get sued. Whilst proper critique is okay the devil is in the way it is said.

About the only thing these posters have going for them that because of the niche wood working machinery market a retailer would loose other clients because of the publicity. So I would stongly suggest that we all heed Neil's advice.


Peter.

[Sturdee]

Are you certain? They had a legal statement on their website about 2 months ago saying that they had never had any action taken against them


Yes I am certain.

I used to read their website and the action was by Steve Price and they reported the details on their website. However the action was against the publisher Stephen Mayne and his wife and their company which published Crikey.com.au.

That was also the reason that they closed their archives and started charging membership fees for access to it.


Peter.

[simon c]

Sturdee

I'm interested in what you are saying as my lay understanding of libel is that the very definition of the word is that the libelous comments are false. Maybe Bond defended on the grounds that they "believed" the comments to be true and therefore were not libelous, but they couldn't demonstrate them to be true?

I really don't believe the "don't buy digitex" post is libelous assuming everything is true and that the poster wasn't trying to be malicious.

[simon c]

This website looks like it delivers the goods:

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

Most importantly, very little that has been posted on this forum about businesses is libelous because:
However, the courts have insisted that, in order for an imputation to be defamatory, it should not extend merely to criticism of goods and services but must reflect on the plaintiff or her or his family thus leaving pure economic loss caused by wrongful statemnts about business to the tort of injurious falsehood and consumer legislation.

So our discussion about companies is not a discussion of libel or slander but a discussion of "injurious falsehood"

Points to note:
Truth is enough of a defence in Victoria
Comments posted on a Bulletin Board are slander (not libel) unless they are permanently archived (which is interesting in the crikey case taht Sturdee quotes). Bulletin boards come under teh same legislation as telehone conversations
Emails are libel as they come under the same legislation as letters

[simon c]

To found an action in injurious falsehood the plaintiff must establish that the statement was untrue, that she or he suffered actual financial loss, and that the defendant acted with malice. Malice is founded where the publisher knew that the statement was likely to injure the plaintiff and knew the statement to be false or was reckless as to its truth. There is some scope for use of this action in the context of cyberspace, particularly where a service provided by the plaintiff receives adverse publicity by news or e-mail.

http://www.mds.rmit.edu.au/law/node22.html

[namtrak]

Yes I am certain.

I used to read their website and the action was by Steve Price and they reported the details on their website. However the action was against the .

Between this board and my daughters there is nowhere for me to go and just make up twaddle - seems like everyone wants me to keep me honest

Wrong again (http://www.smh.com.au/news/Business/Crikey--all-grown-up-and-fetching-a-handsome-price/2005/02/02/1107228770292.html?oneclick=true)

:o

[echnidna]

However it is quite ethical to say

"I will never buy Digitrex" or
"I will never recommend anyone to buy Digitrex" or even
"I will never buy Digitrex and I wouldn't even accept the product if it was free!"

As these are merely statements of your own intentions and are not critical of Digitrex.

[Sturdee]

Simom, That website raises more questions than answers. I suppose that's why there are lawyers for the law as quoted seems a minefield.

Apparently something is libellous if it is archived. However it appears to be sufficient if it is archived on the libelled persons's own computer. In any case this board archives all the posts ( including deleted posts as has mentioned that they keep a log of them ) so it appears not to be injurous falsehoods but libel.

Again the defence of truth is also quite difficult to prove. I appear to be wrong and in Victoria the defence is okay but the other states require that it is in the public interest. That is where Bond failed in its case as it could not prove that to the satisfaction of the jury.

I agree with Echnidna that his way of posting is the way to do it and not the heading " Don't buy Digitrex " which is libellous as it is not borne out by facts and incites a boycott of all of that company products.


Peter.

[MajorPanic]

You are all smelly.

Now sue me.
Well..... I can't, cause it true. :eek:

[echnidna]

There is no such thing as bad publicity...

Dunno about that.
Lindy And Michael Chamberlain did time because of the hysteria whipped up by the media. And it seems politics must have been involved.

[Christopha]

OK,
Part of the reason Neil had to post his "disclaimer" is because a member of this forum who owned (owns) a particular brand of woodlathe objected to my personal opinions of the machine.
This particular object, oops I mean 'person'. then proceeded to inform the new owners of the company which sold the thing of my supposed libel. Now being a little bloke living in the bush I don't have a lot of legal muscle/ knowledge etc at my beck and call so a person from this company spent three months threatening me in a very confronting manner with the loss of my home and property. Also, this person also threatened Neil with all sorts of legal action because he allowed me to express my opinion of the machine!!!!

The lathe is no longer sold. Nothing to do with me but entirely I would think, because the buyers realised its' probable poor value for mioney in todays market. Maybe.

[craigb]

Re Crikey, I believe that Simon Marnne or whatever his name is, sold it a couple of weeks ago for $1,000,000.

Did it cover his expenses?

Who cares?

It was only journo's that used to get excited about it anyway. 99.99999% of the population had never heard of it.

[Christopha]

Sold what?

[craigb]

Crikey.com

[simon c]

Sturdee

I agree that the libel/slander question about storing the data is vague and it tending towards libel is true.

But I still believe that comments about a comapny's service and products isn't either libel or slander but is in the realms of injurous harm because it is against the financial aspects of business and not the reputation of a person. The Bond case and the crikey case were both libel because they were against an individual. And as it is injerous harm, then it is up to the plaintiff to show falsehood, malice and actual financial loss.

[echnidna]

Sturdee

I agree that the libel/slander question about storing the data is vague and it tending towards libel is true.

But I still believe that comments about a comapny's service and products isn't either libel or slander but is in the realms of injurous harm because it is against the financial aspects of business and not the reputation of a person. The Bond case and the crikey case were both libel because they were against an individual. And as it is injerous harm, then it is up to the plaintiff to show falsehood, malice and actual financial loss.

In most civil actions that is the case, but in libel|slander the onus is on the perpetrator to prove they did not commit libel or slander

[Sturdee]

My earlier comments about seeing posts that IMO are libellous, or slander or cases of injurous harm, are not about posts that reports on a company's service and /or products when relevant to the interest of this board.

IMO an honest critique on service and/or product based on facts and done without malice towards the company is perfectly proper and appropriate to post on this board when the service and/or product is related to the nature of this board.

So whilsts a critical review of say a woodworking tool is appropriate a scathing restaurant review would not be. IMO neither would a review of a DVD recorder be appropriate, notwithstanding the admin's allowing it, on this board.

My main concern is the posts that have a recommendation, which encourages others to boycott them, without being based on facts but on the prejuce of the poster. Especially as some members post regularly in that way whenever say Bunnings or Carbatec is mentioned. A series of such posts across a number of threads over a period of time is definitely libel.

Maybe the poster's past experiences caused them to say it but their posts are no longer based on specific and current facts. Hence we would be wise in our choice of words in these cases and heed Neill's warning.


Peter.

[simon c]

In most civil actions that is the case, but in libel|slander the onus is on the perpetrator to prove they did not commit libel or slander
I agree entirely with this, but my point is that commenting on the products or services provided by a company is not slander/libel but is injerous harm.

[Des.K.]

If I can just add my 2.2c worth. I was just hunting through my daughter's law books (2nd year law student; yeah, she knows all the lawyer jokes, and a few more that certainly aren't fit to print here :eek: ) and found the following that may or may not shed some more light on this. Defamation (slander/libel) comes under torts law. One of her books states the general principles of a defamatory statement are:
1) A statement need not be verbal;
2) It must cause the plaintiff to be shunned among right-thinking persons;
3) The statement may be true or false;
4) The statement need not assign any immorality, wrongdoing or disparagement against the plaintiff in order to be defamatory;
5) The statement may be expressed directly or by innuendo;
6) The meaning of the statement is determined from the natural and ordinary meaning of the words and the context within which it is placed.

In a separate section it states:
Truth as a mitigating factor
In NT, SA, and WA truth is a defence; where not pleaded as a bar to the plaintiff's action, it may mitigate damages awarded. …
In jurisdictions where truth is no defence unless there is public benefit/interest, truth does not go to mitigate damages except where:
- the libel is that the plaintiff has a bad reputation
…

And:
The common law holds that a truthful statement negates an action for defamation but in those states that have legislation more is required. The defendant must also prove that the statement was made for the public benefit/interest.

From: Torts Law In Principle (just to cover any copyright thingy).

This text book is well over 1,000 pages and defamation takes up a very substantial chapter. She also has two others, one the same size and one a bit smaller, so you can see it's a very complicated area. Sorry if I've muddied the water.:o

Regards
Des (who has no idea whatsoever about the law)

[simon c]

My main concern is the posts that have a recommendation, which encourages others to boycott them, without being based on facts but on the prejuce of the poster. Especially as some members post regularly in that way whenever say Bunnings or Carbatec is mentioned. A series of such posts across a number of threads over a period of time is definitely libel.
I agree entirely with the sentiment of this, but still don't believe it is libel. But it is defamatory under injerous harm legislation. For it to be libel, you have to be affecting the reputation of somebody, not just calling for people to to stop buying their products. If you are affecting them financially then it is injerous harm and the onous is on the plaintiff to prove falsehood, malice and harm.

I agree with your point about DVD players, it is questionable whether posting a recommendadtion about DVD players on a woodwork site is bordering on malice.

[echnidna]

This woodwork forum is not confined solely to woodwork and matters that have nothing at all to do with woodwork are genuine forum topics so the issue of DVD players (perhaps being malicious) is in itself irrelevant.