Indie Defamation War: Nolan's discovery allowed, Smith's deferred
by: Alex Prior

Screen Hub
Wednesday 15 July, 2009

A series of court decisions has created an Australian first, with independent filmmaker Jonathan (Pisces All Media) being granted permission to view ISP records that could identify the people who made allegedly defamatory posts on the ZGeek and Filmnet websites.

In a separate hearing in the New South Wales Supreme Court, an application by Greg Smith (Myrmidon Enterprises) for an injunction and discovery was struck out on the grounds of procedural errors.

The court ruled that the injunction was not necessary, and instructed Smith, who was representing himself, to re-file the discovery motion. Smith told Screen Hub that he would lodge the motion again in "in a few days."

Sonia Borella, IT and Media partner with Holding Redlich (who is not involved in the case) confirmed that Jonathan Nolan's the discovery order, which will force the Internet Service Providers hosting the two websites to hand over records that could identify the individuals posting the comments, was an Australian (and possibly world) first. "I'm not aware of any case where that's happened in terms of the internet in Australia, the action is usually taken against the person with the deepest pockets," she said.

A similar case in the UK, in 2006, forced Yahoo! to disclose the identity of Tracey Williams, who was being sued by Michael Keith Smith. Smith won his case, making it the first time that a British court had awarded damages for comments posted on an internet bulletin board, Borella said.

The Nolan case is more extensive, because it is seeking to discover multiple identities, in addition to suing the publishers.

Filmnet is hosted by San Francisco-based KickApps, through its Yuku brand. ZGeek, however, is hosted locally by 1337 as Hosting , which appears to be a small partnership operating from New South Wales. Screen Hub was unable to contact 1337 as Hosting.

Both companies could seek injunctions to block the discovery.

A post by Tony Brisciani, the owner of the ZGeek site claims victory in the courtroom, but notes that the legal funds raised from donations by forum members have been exhausted.

Gawain McLachlan, who founded but denies owning the Filmnet site, said that Filmnet was "sort of a community, ownership is a sort of liquid thing." He said that he was unaware of the discovery order, and had not received any writs or other legal communications from either Jonathan Nolan or Greg Smith. Screen Hub has been able to confirm that a date has been set in Greg Smith vs Gawain McLachlan for August, which presupposes that a writ has been issued, if not served.

Sonia Borella said that general publication law distinguishes between "who is the publisher and who is the author," and allowed plaintiffs to sue both. "The same principle applies to traditional media and new media, and that's where we're heading," she said.

The role of internet service providers was unclear, however. "The liability of ISPs in relation to infringements of law are unclear at the moment," she said, noting that the copyright case against iiNet was also doing discovery at the moment, although not in a defamation context, with the Australian Federation Against Copyright Theft seeking to establish the identity of users under pseudonyms.

While the iiNet case is being fought out between behemoths (Telstra is supporting iiNet with legal advice), the Filmnet and ZGeek cases involve minnows, but could be equally important in setting legal precedent on whether ISP's can protect customer's identities, and the legal responsibilities of forum moderators.

And there is not a Senior Counsel or prominent lawyer involved.

Jonathan Nolan (Pisces All Media) and Greg Smith (Myrmidon Enterprises) are separately suing Gawain McLachlan (Filmnet) and Tony Brisciani (ZGeek) for defamation over comments posted on the two websites.

Alex Prior
Alex Prior is the Managing Director of Screen Hub.

news@screenhub.com.au
http://www.screenhub.com.au

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