Last week I raised the issue about a possible legal claim against the provider of an online discussion forum over comments made within that forum.
Today, the Australian Financial Review reports that in another case, an individual who posted discriminatory comments on an online chat group was liable under the Racial Discrimination Act but that the online host was not liable.
While some traditional media commentators were perplexed by the decision that the online service was not liable under the Act in this case (since print publishers would be), I really don’t see the similarity at all.
Firstly, in my opinion (but I am not a lawyer), in traditional publishing domains there is an editorial process and usually a legal process publishers go through. In addition, book publishing takes a lot longer than online publishing, especially since the publisher will often provide editorial direction during the actual authorship of the manuscript. There is therefore an actual publishing process and published end-product.
In online forums, the authorship is immediate and not subject to editorial direction from an online host. Online comments are not publications. The online host is not the same as a traditional publisher. Indeed, online hosts are more like telephone companies in that they provide just the communication infrastructure. Editorial interference in telephone conversations and online forums is not realistically possible if they are to remain efficient and effective communication channels.
The difference between the traditional static world of publishing has moved into the dynamic Web 2.0 world where connectivity, interaction, and collaboration are key. Web 2.0 communication is instantaneous, ubiquitous, highly participatory, and highly scaleable.
Traditional editorial imposts and censorship are not practical in the Web 2.0 world which is why other forms of review are recommended (peer reviews, credibility reviews, and participatory guidelines for web netiquette).
As Electronic Frontiers Australia said in their press release yesterday: “the ultimate responsibility for forum comments which racially vilify lies with the person who posted the comments. It is impractical for forum operators to vet each and every posting in their forums, and if they have no knowledge that this type of material is on their site, they should not be liable.”
Having emphasised the difference between an online host and online comments on an online site, again I must end with the exhortation that individual or collaborative content is always important and needs careful consideration, no matter what the publishing or digital communication domain.