Indie Defamation War: Nolan's discovery allowed, Smith's deferred
A series of court decisions has created an Australian first, with independent filmmaker Jonathan [Nolan] (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.
[...]
Sonia Borella, IT and Media partner with Holding Redlich (who is not involved in the case) confirmed that Jonathan Nolan's ... 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.
[...]
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.