MOULIN BLUES!!!!!!

Hi Anna

Miss Sherman wrote:
> You're right, "cj", or "rdbadger" - two pseudonyms I'm
> incapable of deciphering - there are no internet police. And
> people should post with passion. However they should also
> post with accuracy.

I believe veracity or accuracy isn't (yet) an adequate legal defence against a libel suit in every australian jurisdiction.

> Just because someone feels there is
> something awry does not necessarily mean they have the right
> to publish it,

Sadly, you're right. The notion of freedom of speech is something largely foreign to our laws and is certainly not a constitutional right as is the case in some countries.

On the other hand, I don't think the law seeks to discourage people from publishing their feelings that something is awry.

> Internet posts are considered written published material
> under federal law - so the same rules regarding libel apply
> as would to a paper newsletter, journal article or news item.
>
> And the reason we have laws prohibiting libel in this
> country, that at least allow the complainant to pursue
> action, is because it can be a legitimate cause of business
> and personal losses to an individual or organisation.

It will be interesting to see whether the recent suggested amendments that would prevent corporations from seeking redress via libel actions get through parliament.

> So when the parents of one of the new cast members of an
> International Arts Company production gets on the web, goes
> to Google or Looksmart or this ITA website, types in "Trevor
> Patient", and hits search, the material they find should not
> include unfounded and libellous statements...whether or not
> they are made in the name of passion.

Granted, but whether or not the statements are unfounded or libellous is something that I believe would have to be determined in a court of law.

Quite apart from any alllegedly libellous statements, the material found in your hypothetical search might well contain valid concerns and points of view that a court may not consider constitute libel.

> The link between this
> material being available for public viewing, regardless of
> its accuracy, and damage to the personal and professional
> reputation of both Trevor and his company (and possible
> business losses as a result) is a fairly obvious one to make
> in this scenario.

Once again, something that I believe would have to be proved and decided in court.

> Therefore I would urge the webmasters of this site to
> consider removing posts that contain frankly libellous
> material - I'm not talking about being Big Brother

Oh, but you are.

> (Orwellian, not Channel Tennian), and I'm not talking about
> jokes or sarcasm or posts that might be a bit risque or push
> the boundaries a little - I'm talking about responsible
> management of a site and filtering out the sneaky and cheeky
> from the downright unlawful and damaging. I'm simply
> pointing out the exposure the webmasters risk by allowing
> these types of posts to be freely uncovered using common web
> search tools.

I don't think you're pointing out the risks, I think you're making vague threats about consequences.

This site is built on a model of personal responsibility. What people cause to be published is their responsibility.

> I'd be very keen to hear from the webmasters either on this
> board or via email: whether or not they have obtained legal
> advice about these types of scenarios; what their position is
> on libellous material appearing on their site; what their
> response is to hearing that this material appears as part of
> a garden-variety web search performed on one individual's name.

I think you'll find that our position is entirely in keeping with current case law. As a responsible netizen, if you or anyone else should come across material on this site that you feel is illegal, libellous or an infringement of copyright or trademark then you should write to the contact address provided on every page of the site requesting that the information be removed. Please provide precise details of what you wish to have removed and your reasons for requesting removal. The material will be removed at the earliest opportunity.

I may administer this website, but I do not publish the views of others nor do I read everything that is posted here. Even for the posts that I do read, I am not in a position to second guess what any individual may or may not consider to be libel or whether the court will share that point of view. As administrator, if I am notified that someone regards something posted here as libellous, it then becomes my responsibility to take it down. If I refuse then either I or the ITA may well be held responsible for continuing to publish what others have caused to be posted on these unmoderated message boards.

This site is certainly not intended to be a forum in which people can libel each other with any degree of impunity. It clearly provides a significant portion of the theatre community with a vital outlet for their views and feelings. Discussion will occasionally be very robust and plenty of forthright views will be expressed, but the very significant difference between these mesage boards and the paper newsletters, journal articles or news items you referred to earlier is that everyone has a right of reply here.

This site plays an important role in drawing the attention of the parents of new cast members that you mentioned to the fact that there is concern in the community at the way in which some companies may be taking advantage of the aspirations of performers and perhaps lining their own pockets at the expense of volunteers.

I resent and will continue to strenuously resist attempts like yours to censor and stifle discussion on this forum through vague and ill-informed threats. If you have legitimate concerns then point out the specific instances, provide your reasons and I will remove the material.

Cheers
Grant

Thou infectious rude-growing lewdster!

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Hi Grant,

Thank you - your summary and viewpoint is much appreciated, and has included plenty of food for thought for me, and I'm sure for other watchful eyes out there. Thanks for taking the time to respond.

I concur that at this stage veracity and/or accuracy are not stand-alone grounds for establishing defamation, and I agree with your view that the intent of the law is not to discourage people from publishing their feelings that things are awry. However the common law tests of whether material is or is not defamatory (whether it is calculated to engender hatred, contempt or ridicule of the plaintiff, whether it may cause right-thinking individuals to lower their estimation of the plaintiff, and whether it may cause people to shun or avoid the plaintiff) suggest a distinction between publication of legitimate concerns in a balanced manner, and deliberate public attacks on a person's credibility.

I firmly believe Tacky's post on July 24th falls into the latter category. It refers to a perceived right to dampen the company's reputation, which suggests that is the exact intent of the publication. It suggests the International Arts Company and the person who operates it conduct themselves "illegally". It publicly charges Trevor Patient with being someone who "wants money and is willing to knock anyone over to get it", and later describes him as someone who "uses you". It's published in a forum visited by a large number of those interested in community performing arts - exactly the group of people on whom Trevor is dependent upon for support and trust. It has been published on this site now for three and a half months, and I would like to see it removed permanently. I'll send an email shortly to request its removal.

I too will be interested in following the outcome of the possible shake-up of dafamation law nationally proposed by the states and territories, though from the details available to the public so far it does not appear that an individual's right to sue for defamation will be greatly affected other than having the potential pay-out figure capped.

And I extend my unqualified apologies to you and to anyone else who may have felt threatened by my previous posts; that was never my intention. I note your suggestion to use the contact email to request removal of offending posts. I also note the guidelines set down on the disclaimer page of this website and can understand the personal responsibilty model espoused by the owners and organisers of the website.

However I also note that the definition of republication, and assignation of responsibility to a publishing website is not yet crystal clear and is being defined slowly and by degrees through case law. Having responded to my post, it's clear that you have read it, and I also believe it didn't require any second guessing to conclude that I view the material as defamatory. If your suggestion involves merely sending an email to state my belief and request removal, why not already do that based on my previous post? Is a post that you've already responded to in detail not notification?

I'm sure that gets us into foggy area again in terms of your responsibilities as administrator, and would be worth more discussion - though I'd at least like to see an area of the site that tells people what to do just as you have in your post. I may have missed something, but I couldn't find anywhere on the site that has a suggestion to the effect of: "if you believe illegal, unauthorised or illegal information has been published on this site, please email us here". Under the personal responsibility model, you've advised people who post what their responsibilities are, but as someone who was responding to a post that in my view breached your guidelines, I believed using the forum would have a similar effect, and had no instruction to refer to that suggested otherwise (please point it out to me if it exists other than in your post here). Am happy to send the email as well, but perhaps that needs to be the suggested recourse in these circumstances as part of the website's Disclaimer page?

So I reiterate: I was not posing threats, but attempting to open discussion on whether it's ever appropriate for the webmaster to step in. And I tend to resent accusations of being vague and ill-informed, though I recognise your right to publish them. As someone who does understand my responsibilities in regard to defamation, copyright and illegal material, and also understands the permanence of web message boards, my posts do not necessarily include the full detail of my opinion. Talk to me in person, however, and I believe though we may have different views on some subjects, you would find I am better informed than you suggest.

The bottom line from my perspective, though it may have seemed otherwise, is that the material published by Tacky was insulting at the least, and my opinion defamatory. I have it on good advice in this scenario that a court would probably hold the same view. It has been read by people who know Trevor, including parents of kids in his last show, and Trevor and those around him believe it has resulted in damage to his personal and professional reputation, and it has certainly caused distress for him and some of the people who work with him. However all the debate about defamation law, while valid and constructive from a big picture perspective, does not address the real problem: nobody wants to sue anyone here (who here thinks Tacky is a goldmine?), we just want one of two things: either a retraction and/or apology from Tacky or removal of the post. Given we've waited around for three months for Tacky to respond again, I think the former is unlikely.

I too believe this area requires further debate, and I respect the views expressed in your post - I also happen to agree with many of them, though I believe we have applied the same concepts differently. I support the forthright and vigorous expression this kind of an online community encourages. However I don't believe a valid complaint about the legality of the content of one of the posts should be written off as stifling or as censorship.

I enjoy the dialogue though.

Thanks once again for weighing in.

Cheers
Anna

Hi Anna

Thanks for the response.

Miss Sherman wrote:
> I concur that at this stage veracity and/or accuracy are not
> stand-alone grounds for establishing defamation, and I agree
> with your view that the intent of the law is not to
> discourage people from publishing their feelings that things
> are awry. However the common law tests of whether material
> is or is not defamatory (whether it is calculated to engender
> hatred, contempt or ridicule of the plaintiff, whether it may
> cause right-thinking individuals to lower their estimation of
> the plaintiff, and whether it may cause people to shun or
> avoid the plaintiff) suggest a distinction between
> publication of legitimate concerns in a balanced manner, and
> deliberate public attacks on a person's credibility.

I'm not in any doubt about the law, it's how it is exercised that concerns me. I suspect you might agree that knowing the law and having to exercise professional judgement are not the same thing. Would you be prepared to stake your livelihood and reputation on your judgement of whether a post constitutes "publication of legitimate concerns" or "deliberate public attacks on a person's credibility"? Which side would the axe fall? How's your professional indemnity cover? Do you have time to wade through a couple of dozen posts per day? If you're prepared to do it for free, maybe I have a job for you.

;-)

> I firmly believe Tacky's post on July 24th falls into the
> latter category. It refers to a perceived right to dampen
> the company's reputation, which suggests that is the exact
> intent of the publication. It suggests the International
> Arts Company and the person who operates it conduct
> themselves "illegally". It publicly charges Trevor Patient
> with being someone who "wants money and is willing to knock
> anyone over to get it", and later describes him as someone
> who "uses you". It's published in a forum visited by a large
> number of those interested in community performing arts -
> exactly the group of people on whom Trevor is dependent upon
> for support and trust. It has been published on this site
> now for three and a half months, and I would like to see it
> removed permanently. I'll send an email shortly to request
> its removal.

The post has been removed in accordance with your request.

http://theatre.asn.au/read.php?f=21&i=1314&t=1272

> And I extend my unqualified apologies to you and to anyone
> else who may have felt threatened by my previous posts; that
> was never my intention.

Thank you very much.

> However I also note that the definition of republication, and
> assignation of responsibility to a publishing website is not
> yet crystal clear and is being defined slowly and by degrees
> through case law. Having responded to my post, it's clear
> that you have read it, and I also believe it didn't require
> any second guessing to conclude that I view the material as
> defamatory. If your suggestion involves merely sending an
> email to state my belief and request removal, why not already
> do that based on my previous post? Is a post that you've
> already responded to in detail not notification?

There are more than 50 posts in this thread and more than 21,000 messages across the website. Your post came three and a half months after the one that you have now requested should be removed. If some one is requesting that defamatory material be removed I don't think it is too much to ask that they specify precisely what they want removed. You explanation regarding why it should be removed is a little more than I would usually expect. I usually ask people to state whether they regard it as defamatory, unauthorised or illegal.

> I'm sure that gets us into foggy area again in terms of your
> responsibilities as administrator, and would be worth more
> discussion - though I'd at least like to see an area of the
> site that tells people what to do just as you have in your
> post. I may have missed something, but I couldn't find
> anywhere on the site that has a suggestion to the effect of:
> "if you believe illegal, unauthorised or illegal information
> has been published on this site, please email us here".
> Under the personal responsibility model, you've advised
> people who post what their responsibilities are, but as
> someone who was responding to a post that in my view breached
> your guidelines, I believed using the forum would have a
> similar effect, and had no instruction to refer to that
> suggested otherwise (please point it out to me if it exists
> other than in your post here). Am happy to send the email as
> well, but perhaps that needs to be the suggested recourse in
> these circumstances as part of the website's Disclaimer page?

Thanks very much for the suggestion. You'll notice that the Disclaimer page has been updated very much along the lines of your suggestion.

> So I reiterate: I was not posing threats, but attempting to
> open discussion on whether it's ever appropriate for the
> webmaster to step in. And I tend to resent accusations of
> being vague and ill-informed, though I recognise your right
> to publish them. As someone who does understand my
> responsibilities in regard to defamation, copyright and
> illegal material, and also understands the permanence of web
> message boards, my posts do not necessarily include the full
> detail of my opinion. Talk to me in person, however, and I
> believe though we may have different views on some subjects,
> you would find I am better informed than you suggest.

While I always appreciate an opportunity to revisit and review our position on this matter, I'm afraid I'll stand by my comments that your earlier post was so vague that, I had no idea whether you were referring to a specific single post, a number of posts or the whole entire discussion. Your subsequent message has provided me with just the detail I needed in order to act on your particular concerns. Thank you.

> The bottom line from my perspective, though it may have
> seemed otherwise, is that the material published by Tacky was
> insulting at the least, and my opinion defamatory. I have it
> on good advice in this scenario that a court would probably
> hold the same view. It has been read by people who know
> Trevor, including parents of kids in his last show, and
> Trevor and those around him believe it has resulted in damage
> to his personal and professional reputation, and it has
> certainly caused distress for him and some of the people who
> work with him. However all the debate about defamation law,
> while valid and constructive from a big picture perspective,
> does not address the real problem: nobody wants to sue anyone
> here (who here thinks Tacky is a goldmine?), we just want one
> of two things: either a retraction and/or apology from Tacky
> or removal of the post. Given we've waited around for three
> months for Tacky to respond again, I think the former is
> unlikely.

Your request was the first received in the three and a half months since the posting you refer to and the post was removed within a matter of hours. I've also updated the Disclaimer page to hopefully more readily draw people's attention to an appropriate course of action.

I can't promise that there will always be as timely a removal as has occured in this case (i'm at home this afternoon with a sick wife and child) but the systems we have in place can and do work.

Cheers
Grant

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Hello Anna and Grant


While understanding your concerns about the defamatory post, Anna, I believe Grant acted very responsibly not to jump the gun until you were able to be extremely specific. And I notice that, having followed that more cautious path, you both then came to agreement about what the problem was and he was very prompt in solving it. Both sides have now contributed to the wording of a procedure to follow in future. Excellent.


But here's a tricky question for you both...what do you think should be done about this post of yours, Anna...?

http://theatre.asn.au/read.php?f=21&i=1333&t=1272

...which virtually reproduces the very material you just had erased? (along with your views about said material).


My view is it should probably be allowed to stand, because the offending material is tempered by your opposing argument....but then, wasn't the now-deleted post tempered by many opposing arguments (including Anna's reply) anyway?

So if we're going to agree that, regardless of the evidence of counterargument, we still need to remove the libelous posts, do we now need to edit the arguments that come later in the thread? There are now several 'orphaned' counterarguments that suddenly have no argument to counter...they no longer seem to serve any purpose; should they too be deleted?


Also, to relate to a personal experience: I have been called some things on this very website which could have been considered similarly damaging to my professional reputation...had anyone believed them. As it turned out, many respected voices gave strong counterargument and showed the detractor to be a bit of a dickhead, thus saving my professional standing from substantial damage. Phew.
But was this not also the case here? Many respected points of view took issue with the detractor, and in the process pointed him/her out to be a similar dickhead. With the wind thus thoroughly knocked out of his/her sails, can the offending opinion still in any seriousness be considered as a potentially damaging threat..?


I'm not taking any particular side here, but I find the concept interesting. As far as the issue goes, I agree that the offensive and unsubstantiated libel obviously ought to be dismissed (therefore it makes little difference in my view whether it was deleted or not), but there are still posts here that argue convincingly (and legally) either for or against the victim of the now-removed defamation, and they continue to be my main reference when forming an opinion of him.
I think it's very useful to take into consideration people's opinions...but I'm well aware that they are only opinions. I'd like to hear Trevor's point of view.

Cheers,
Craig

Hi Craig

Points well worth raising!

crgwllms wrote:
> And I
> notice that, having followed that more cautious path, you
> both then came to agreement about what the problem was and he
> was very prompt in solving it.

Actually there was no agreement involved. You'll notice that I don't presume to make any judgement about whether or not I believe the requested material is libellous. That would be up to the courts to decide. I act as soon as I'm requested to remove something that someone informs me they regard as libellous.

In fact, I share all of the doubts raised in your post. I tend to think that any reasonable person would take into account the context of posts on a public message board, particularly anonymous ones, and that this might well mitigate against any attempt to engender contempt or ridicule and the amount of damage done to a person's reputation. You'd have to be pretty gullible to TACKY's word for what appeared in her/her post! I also believe that any reasonable person in the least concerned about the reliability or veracity of the views espoused would read TACKY's post in the context of the other discussion on the website. All of which may not do a great deal to assist TACKY in defending a libel case, but could limit the culpability of those offering the message board facility.

But this is all entirely hypothetical and I for one can't afford to test it in court.

Dang!

;-)

Cheers
Grant

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