Importance of where a site is hosted

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vonee
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Importance of where a site is hosted

Post by vonee » Wed Sep 08, 2021 9:53 pm

Recently the High Court in Australia ruled that a comment made on a website is the liability of the owner of the site.
My site caters to an Australian audience but is hosted in America.
I have always thought that this makes me subject to Section 230 of the Communications Decency Act and not liable to Australian law in this respect.
Does anyone have any thoughts on where I can go to find out what to do with my comments section, in light of this ruling?

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Re: Importance of where a site is hosted

Post by sozzled » Wed Sep 08, 2021 10:52 pm

Um ... hmmm ...

If you own a website (i.e. you own the contents) it doesn't matter where the website is hosted. The website could be hosted half-a-world away. It's not the hosting company's responsibility to determine whether their customers comply with laws in other countries.

I read the report about the High Court's decision (after all, I'm an Australian) that the website owner is responsible for the content ... and that makes sense. The Communications Decency Act is a US law. I wouldn't know beans about what laws may exist in other countries but you can bet your bottom dollar that I would vigorously defend any action brought against me citing me breaking the law in another country! :laugh: I mean, let 'em try.

Certainly, as a website owner (who lives in Oz) I am responsible under Australian law in relation to all manner of things: consumer law, criminal law, civil law, etc., etc. As a customer of a webhosting provider who has a business office here in Australia, I have to abide by their terms of use. It doesn't matter to me if that company runs its servers here or overseas (it just happens that their servers are based in Canada).

I think you're referring to the Dylan Voller case and whether Australian media businesses could argue, in defence of posting defamatory comments on Facebook (and Facebook is a world-wide business), that they couldn't be held liable because they weren't the publishers of the content; they argued that Facebook was the publisher. The High Court tossed out that argument. The media businesses then tried to argue that it was the ISP who was responsible for allowing the defamatory comments to be transmitted over the ether into Facebook! Again, ISPs are protected against that by the Broadcasting Services Act.

I read the case. Best thing to do is keep it clean, eh? ;)
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Re: Importance of where a site is hosted

Post by vonee » Wed Sep 08, 2021 11:39 pm

KIt's not me, it is the occasional poster! If I am away from the computer or don't read through every post, I am obviously concerned that this could get me into trouble.
I run a very conservative sit but every now and again, one of my posters can get a bit carried away.
It certainly is a concern if I could be held responsible for a comment a third party puts on my site....

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Re: Importance of where a site is hosted

Post by Maradona » Thu Sep 09, 2021 3:34 am

Good topic to discuss...should be somewhere in this forum to have a news & update on legal from around the world. :pop :laugh:

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Re: Importance of where a site is hosted

Post by abernyte » Mon Sep 13, 2021 4:49 pm

This is a highly complex area of international law and by its nature can never be either up to date or accurate in every respect. Much of the differing law across the world depends on the nature of the content and the provisions in law change depending on if it is for instance a copyright issue, hate speech, or sexual content.
As a general rule there is no jurisdiction in the democratic world where there is strict liability for any content posted on line on your site.
The countries legal positions fall into four categories:
1. the USA where the first amendment protects free speech with caveats.
2. the three common approaches to intermediary liability in democratic countries outside the United States: the awareness or “actual knowledge” approach (Australia, India, Japan, and the Philippines), the notice and takedown approach (New Zealand and South Africa, UK in part), and the “mere conduit” approach (EU, South Africa,UK in part and India).
So, to answer your question, yes it does matter where you are and where your server is. The former being more important than the latter.
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Re: Importance of where a site is hosted

Post by vonee » Mon Sep 13, 2021 8:37 pm

Thanks for your reply... so confusing isn't it?!

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Re: Importance of where a site is hosted

Post by sozzled » Mon Sep 13, 2021 9:14 pm

It's not confusing to me (but maybe I don't get into contentious situations where people post personal commentary on my websites). I manage the websites—you could say that I own them—and I'm responsible for any content that may offend others.

As far as using social networking products (e.g. Facebook, Twitter, Instagram, etc.) are concerned, the recent court decision is clear: these companies have obligations if content is posted that contravenes their usage terms (and those companies can be compelled to remove offensive content). The court ruling means that it makes it easier in situations where anonymous trolls write hate-speech, gross misinformation or other garbage, to allow potential litigants to bypass the "originator" of the material and go after the "publisher" of the material.

In the sense that the OP may not necessarily be the originator of offensive material, his website becomes the platform on which such material can be published. That is, the OP could be declared to be the publisher who has not taken sufficient precautions to ensure that published material is not vetted in terms of how a court may interpret as offensive—the rights of freedom of the press, notwithstanding. Even in the US, courts are continually vexed with weighing "freedom of the press" against "public interest journalism" and the rights of the individual to enjoy freedom against defamation.

In my view, I err on the side of caution.
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Re: Importance of where a site is hosted

Post by vonee » Mon Sep 13, 2021 9:19 pm

Yes, fortunately, my readers are not explosive but I do monitor each post they make... it is time consuming going through them just in case someone new sneaks in.... we are a conservative site and tend to be politically and morally " old fashioned " but the odd newcomer pops in to stir the pot. I delete the posts but it is a big task to make sure that nothing slips through. It places an enormous responsibility on the moderator/owner of the site.

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Re: Importance of where a site is hosted

Post by brian » Mon Sep 13, 2021 9:55 pm

I can't comment for the law in any country other than England where I live and have considerably experience in this area.

The law has been well established on this matter for over twenty years. An internet service provider is NOT legally responsible for any of the content that it hosts (and the same applies to the owner of a website with user supplied content) UNTIL the moment that it is notified. From that point in time forward if a court decided that the content was indeed breaking a law (copyright, libel etc) then the ISP/WEBSITE would be jointly liable with the author. This is the main reason why many ISP/WEBSITE just automatically remove content when they are notified without checking if it is indeed illegal as claimed. This way they don't to incur the expense of defending a legal action.
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Re: Importance of where a site is hosted

Post by vonee » Mon Sep 13, 2021 10:02 pm

Thanks for that input. It is much appreciated and I feel that this is a very important subject for all of us around the world.

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Re: Importance of where a site is hosted

Post by abernyte » Tue Sep 14, 2021 8:07 am

I concur with Brian where English law is still in harmony with EU provisions which is the "actual knowledge" approach. I too have some experience in this field.
However, there always is with the law, this only extends liability protections to online services when their activity “is of a mere technical, automatic and passive nature.” So, the liability protections extend only to “passive” online services offering “mere conduit”, “caching”, or “hosting”. Online services that play a more active role in organizing content, such as a traditional social media site, do not qualify.
The inference here is if you moderate your content and leave something in place that contravenes then you are liable. If you do not moderate, you have no liability until you are aware of the content and fail to act. This is an important distinction which should be noted.
The position in England appears to be heading for a change post Brexit where the current Government favour excluding social media from "mere conduit" and appear to be positioning social media in a half way house between "mere conduit" and publishers.
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Re: Importance of where a site is hosted

Post by brian » Tue Sep 14, 2021 1:11 pm

If you do not moderate, you have no liability until you are aware of the content and fail to act.
Which is the correct legal explanation of what I was trying to say. ;)
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