Customer feedback gathering in Australia

Question

Is it legal to provide an independent platform/system to the public, so that they can write feedback directly on different companies/products in the market?

Example:

Is it legal for company ABC to make a public bulletin board about BMW and invite all people to write their feedback/comments?

Answer 1

On the face of it there is nothing illegal about your proposal, however, "Australia maintains some of the most restrictive Internet policies of any Western country". In addition, a suit can be brought under Australian law for any material accessible in Australia irrespective of the original source or where it is hosted.

Offensive Content

The Australian Communications and Media Authority (ACMA) is empowered to look into complaints from Australians about prohibited content on the Internet and issue takedown notices. The ACMA is not mandated to scour the Internet for potentially prohibited content, but it is allowed to begin investigations without an outside complaint.

Prohibited content is content that which would attract an R18, X18 or RC by the Australian Classification Board. Note that this is more restrictive than what is allowed for offline publication; offline publications can be R18 and X18.

Once the determination has been made that content hosted within Australia is prohibited, the ACMA issues a takedown notice to the Internet content provider (ICP). It is not illegal for the ICP to host prohibited content, but legal action could be taken against it by the government if it does not comply with the takedown notice.

For offensive content hosted outside of Australia, the ACMA itself determines whether content is prohibited and notifies a list of certified Web-filter manufacturers to include the prohibited Web sites in their filters. Australian Internet Service Providers (ISP) are required to make these filters available to their customers but their use is not mandatory.

Your type of site is unlikely to fall foul of this but it could happen, particularly if you allow images or video uploads. You would need to be able to respond quickly to any take down notice.

Hate Speech

Australia addresses hate speech through the Racial Discrimination Act 1975, which makes it "unlawful for a person to do an act, otherwise than in private, if: the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and the act is done because of the race, colour or national or ethnic origin of the other person, or of some or all of the people in the group."

The Federal Court has ruled that publication on the Internet without password protection is a "public act" and hate speech on your website could fall foul of this provision. ACMA does not have the statutory authority to deal with hate speech complaints so the only avenue is through the courts, however, ACMA will pass on complaints to the ICP.

This area is much more likely to be an issue for your site - it is easy to see a complaint about a product with a distinctive national origin descending into hate speech as defined.

Copyright

As a publisher, you could be held liable for the uploading of copyright infringing materials by others.

Defamation

This is probably where your greatest risk lies.

For a defamation action to be successful, it must be established that the communication:

• was published to a third person, i.e. to at least one person other than the plaintiff (person/entity defamed). Putting it on the internet does this.
• identifies the plaintiff, for example, by name or by a reference to a small group of people, etc. Identifying the person as, say BMW, does this.
• contains a defamatory statement or imputation (whether intentionally published or not). Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule; say a criticism about a car the person makes.

In theory, any individual or entity who considers damage to their reputation has or is likely to occur, as a result of material published, may sue the publisher/s of the material. In practice, the laws are inaccessible to ordinary individuals who are defamed due to the exorbitant legal costs involved in bringing a defamation action. Australia's defamation laws are often used by politicians and corporations who consider the media, individuals or community groups have defamed them in publishing information critical of their activities.

Defamation action may be brought, not only against the original publisher (writer/speaker), but also against anyone who takes part in the publication or re-publication of the material. However, the fact that a person can be sued does not necessarily mean they would be found liable by a court. There are numerous aspects relevant to liability.

Defences that may be successfully pleaded in relation to a defamation action vary throughout Australian jurisdictions. Depending on the jurisdiction, these may include:

• truth/justification
• fair comment (e.g. an expression of an honestly held opinion or a criticism on a subject matter of public interest)
• absolute privilege (this attaches to the occasion, not the statement or speaker, such as during parliamentary proceedings, judicial and quasi-judicial proceedings, executive communications and communications between spouses)
• qualified privilege (e.g. fair and accurate reports of parliamentary proceedings, judicial proceedings, public meetings concerning matters of public interest/concern)
• consent (e.g. where the plaintiff expressly or impliedly consented to the publication of the particular imputation)
• triviality (e.g. where the circumstances/occasion of the publication were trivial to the extent that the person defamed was not likely to suffer harm)
• innocent dissemination (e.g. applicable to re-publishers/re-distributors such as newsagents/book sellers, including potentially to ISPs/ICHs. The defence in Clause 91 of the BSA is also relevant to ISPs/ICHs.)
• etc

The Broadcasting Services Act (C'wlth) ("the BSA") provides a statutory defence to an ISP/ICH who carries/hosts Internet content in Australia and who was not aware that they were carrying/hosting a defamatory publication. You need to have good procedures in place to remove defamatory content ASAP after you become aware of it.

Defamation action under Australian law may be commenced in any State or Territory in which the allegedly defamatory material was published. The Australian High Court has ruled that a party within Australia can sue a foreign party in an Australian court for defamation resulting from an online article hosted on a foreign server.