15 Apr 2012

Western Australian newspaper web site liable for reader comments

Submitted by Troy Rollo

In Clarke v Nationwide News Pty Ltd [‬2012‭] ‬FCA‭ ‬307‭, the publisher of a newspaper web site that allowed reader comments was found liable for comments that breached the Racial Discrimination Act 1975 (Cth).

Nationwide News admitted to publishing the comments, but denied they breached the Act, arguing:

the publications were made because of a desire to encourage discussion about matters of undoubted public interest.‭ ‬... it may be accepted that part of the background that led to the discussion was the death in a car crash of four Aboriginal boys who were involved in an illegal enterprise,‭ ‬the theft of a motor vehicle.‭ ‬Among the matters discussed were Aboriginal disadvantage,‭ ‬how best to remedy it,‭ ‬and the question of personal responsibility.‭ ‬The respondent contends‭ ‬these‭ ‬were and are legitimate matters for‭ ‬public‭ ‬discussion and the comments on these topic do‭ ‬not give offence... the evidence does not show,‭ ‬in any event,‭ ‬that the true reason or the true ground of the act or acts of publication in this case was‭ “‬because of‭”‬ the race of the applicant.

These arguments were not accepted, so the Court considered whether the newspaper could be liable for the third party posts. In this case Nationwide News did moderate the posts before publishing them, however Nationwide News claimed the Act did not apply to the decision to allow the posts through, because that decision was not made "because of" anybody's race.

In considering this, the Court finds that:

where the evidence‭ ‬is‭ ‬that a respondent actively‭ ‬solicits and moderates contributions from readers before publishing them,‭ ‬and reserves the right not to publish or to modify‭ ‬them,‭ ‬the potential for a finding of contravention... is real.‭ ‬While the‭ ‬apparent‭ ‬subjective intention or motivation of the respondent in doing an act‭ ‬in such circumstances‭ ‬will be relevant to the question of causation,‭ ‬it‭ ‬will‭ ‬not‭ ‬be‭ ‬definitive.‭ ‬If the respondent publishes a comment which itself offends... ‬where the respondent has‭ “‬moderated‭”‬ the comment through a vetting process,...‬ ‬then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it.‭ ‬In such circumstances,‭ ‬it will be no defence for the respondent media outlet to say,‭ “‬But we only published what the reader sent us‭”‬.‭ ‬Obviously,‭ ‬such circumstances are unlike those ...,‭ ‬where,‭ ‬at material times,‭ ‬the [publisher] did not know about a comment that had been posted on the website it maintained.

The judgment spends some time describing the evidence of how the moderation was done, as well as the posts complained of. It is readily apparent that the job of the moderators is not a simple or straight-forward one. The Court finds some of the comments were posted without the racial motivation, and some were posted with the racial motivation. However the boundary is far from clear, and most of the decisions could easily have gone the other way.

This is one in a series of recent cases in which the publishers of interactive web site content have been found liable for the content submitted by third parties.

In the United States, the web site operator would be protected by 47 USC 230, which generally immunises web site operators against civil suits for content authored by others. However there is no such immunity in Australia, so Australian web site operators need to exercise additional care when accepting contributor comments.

In this case the fact that the newspaper did moderate was used against them. However it does not follow that if they had not moderated, they would have been immune. There is an element of "damned if you do, damned if you don't" in this. The outcome of this case is that the moderators will likely be required to be more aggressive in screening comments, although in a context where racial issues may be involved, the safer course may be to not allow comments at all. That would be a poor outcome for political speech.