How to Run an Online Forum in Australia – With the advent of the Internet, online forums have exploded in popularity. They’re a great way for people with mutual interests to connect and discuss. And running an online forum has become a legitimate type of business, with potential revenue coming from advertisements, subscriptions, sponsored content, affiliate relationships, etc.
These days setting up an online forum is relatively easy, with off-the-shelf software and ready-to-use templates. But before you dive in and start setting up your own forum, there are some important legal considerations you should be aware of first.
Legal issues covered in this guide
Click on any of the questions below to jump to that section of this legal guide.
- Forum Legal Risks
- Forum Rules
- Forum Legal Notices
- Managing a Forum
- Can I ban people from my forum?
- Should I include a minimum age limit for accessing my forum?
- What are my responsibilities for keeping forum user data private?
- What are my responsibilities under GDPR rules?
- What business structure should I use for my forum?
- Do I need liability insurance to run an online forum?
- Can I ban people from my forum?
If after reading this guide you still have a question, get in touch as we’d love to keep adding your questions to this comprehensive guide.
Forum Legal Risks
What legal issues am I likely to encounter running a forum?
There are five legal issues you might encounter running a forum:
- Defamation of one of your forum users or a third party by another forum user
- Copyright infringement by your forum users
- Your liability for all content posted on your forum
- The privacy of your forum users and the security of their data, and
- Complying with GDPR rules if you collect data from UK or EU citizens
Each of these legal risks and how to handle them are dealt with below.
What is defamation?
Defamation is the publishing of false information about a person or business that causes harm to their reputation. The person or business may then sue for damages arising from their loss of reputation.
People being people, they often disagree and argue with each other. If the argument degenerates into an exchange of insults, you might end up with one forum user “defaming” another forum user.
Am I liable for defamation on my forum?
Yes, it is possible that you may be liable for defamation on your forum (even though you did not create the defamatory content in the first place).
Defamation law distinguishes between ‘primary publishers’ (such as the person who first posted the defamatory content on your forum) and ‘disseminators’. If defamatory material is posted on your forum, then you may be considered a disseminator of that information.
However, if you remove any material that may be considered defamatory when you are made aware of it, then you will not be liable. You may only be liable if you fail to take down the offending content when prompted.
What is copyright infringement?
Copyright protection applies automatically and as soon as a piece of “work” is created. Pieces of “work” can take many forms: songs, movies, written material, photographs, tag lines, etc. They are all automatically protected by copyright as soon as they are created.
Copyright infringement occurs when someone uses copyright protected “work” without permission or without a valid defence. For example, if a literary critic quotes a passage from a book as part of their book review, this is considered fair dealing and a valid defence. However, if a person “pirates” a complete movie and uploads it to a website for sharing, then this is copyright infringement.
Am I liable for copyright infringement on my forum?
You may be. Australian law is still somewhat unsettled on this matter. Recent legal precedents have indicated that disseminators of information, such as internet service providers, website and forum owners, may not be responsible for copyright violations that happen on their platform if they are not aware of this violation.
However, if you are made aware of a copyright infringement on your forum and have the ability to mitigate the harm from the infringement but fail to do so (e.g. by not removing the infringing material) then you may found liable for the copyright infringement.
Am I liable for all content posted on my forum?
It is possible that you could be liable for the negative consequences of content that other people post on your forum. However, in most cases, Australian law considers that this liability does not arise until you are made aware of the offending content.
For example, if a forum user complains to you about offensive content which they have seen on your forum and you do nothing about it (i.e. you do not remove it from the forum) then you could be found liable.
Do I need to post Forum Rules?
Yes, you need to post your Forum Rules. These will notify your forum users of what is and what is not acceptable on your forum – and when disciplinary action may be taken!
You should post your Forum Rules in a prominent position, for example, at the top of the forum home page. You want your visitors to be made fully aware of the rules and not be able to argue that they didn’t know they were breaching your rules, if they do.
It is even better to have your forum members tick a box to actively agree to your Forum Rules. In this way they cannot claim that they didn’t see or agree to your rules.
What clauses should I include in my Forum Rules?
In general the following clauses should be included in your Forum Rules:
- A general description of the purpose of your forum and the types of content that are permitted to be posted.
- A specific description of content that is not permitted to be posted on your forum. For example, defamatory, offensive, illegal or abusive content; content that incites violence; content that infringes someone else’s copyright or intellectual property rights; etc.
- Confirmation of who owns the intellectual property rights of any content that is posted on the forum (for example, most forum owners hold the intellectual property rights to any content posted on the forum).
- Confirmation of how you may deal with forum content (for example, most forum owners want to have the right to reproduce or use content posted on their forum if they choose).
- Instructions on what forum users should do if they see content that violates the Forum Rules, including contact details and an email address like: [email protected]
- Disciplinary procedures that may apply if the Forum Rules are broken.
If you need help drafting your Forum Rules, we can help. So get in touch.
What are the risks of not posting Forum Rules?
Firstly, forum users will simply not understand what is expected of them. This is likely to lead to many more incidences of unwanted behaviour.
Secondly, if a forum user actually engages in unwanted behaviour, you may face difficulties in dealing with it. The user might not accept that they have done anything wrong because there are no rules! Legally, you might also not have the right to deal with the user in the manner that you want, such as banning them from the forum.
Thirdly, the lack of Forum Rules could increase the likelihood that you are found liable for matters that arise through your users’ conduct. For example, if a forum user posts content which offends another forum user or is not in keeping with your content topic, it is not necessarily clear that you do not approve of this behaviour and have the right to ban them. In this circumstance, it is possible that you could be found to have encouraged or approved of the behaviour.
How do I ensure visitors to my forum agree with the Forum Rules?
Here are 3 suggestions for ensuring forum users agree to your Forum Rules:
- Post your Forum Rules in a prominent location on your website, where visitors cannot help but see them.
- On signing up and joining your forum, have the Forum Rules appear in a popup box; have the visitor to scroll through them and have them agree by ticking an “I agree” checkbox.
- If you capture your forum user’s email address, send them an auto-generated email with a copy of your Forum Rules.
And make sure your Forum Rules are always easy to read and easy to understand.
How do I ensure visitors to my Facebook forum agree with the Forum Rules?
The structure of Facebook might restrict your ability to add popup messages and checkboxes, so you might need to think of some other practical ways to have your visitors agree to your rules. Here are some suggestions:
- Post your rules prominently at the top of your Facebook page, so that it is the first thing people see when they navigate to the page.
- Make sure that one of the first statements reads something like “By continuing to use this page, you are agreeing to these rules.”
- If possible, it is always better to have users take some kind of active step, such as checking a box or clicking a button, to confirm that they have actually read and agreed to the rules.
- If you have more detailed rules which will not fit at the top of the Facebook page, then add a prominent link that reads something like “Complete Set of Terms and Conditions”.
Forum Legal Notices
What other legal notices do I need to post on my forum?
We’ve already covered the importance of Forum Rules, but what other legal notices should you post? Here is what we recommend:
- A Disclaimer that limits your liability if a forum user suffers a loss from following advice on your forum, relying on information provided through the forum, etc.
- Terms and Conditions which should cover your Forum Rules but also include information for advertisers, paid subscribers, any affiliate revenue or benefits you may receive, etc.
- Email addresses
- Physical addresses
- Telephone numbers
- Credit card numbers, etc.
In addition, if you collect any personal information from UK or EU citizens who access your forum or if you “process” any user data in the UK or EU (e.g. your forum is hosted in the EU) then you need to comply with GDPR.
For more detailed information, see our feature article: How to Comply with GDPR.
Do I need to post a Disclaimer?
Yes. As the name suggests, a Disclaimer “disclaims” liability and provides you with valuable legal and financial protection from your forum users.
For example, perhaps your forum contains discussions about investing in the stock market. If somebody makes an investment based on something they read on your forum and then loses money on that investment, there is a risk that they could say you are responsible and sue you for their loss.
A well drafted Disclaimer will protect you from this liability. The Disclaimer would clarify that your forum is not financial advice; that you are not responsible for forum content; and the forum users takes action at their own risk.
Do I need to post Terms and Conditions?
Yes. You need a set of forum Terms and Conditions which apply to all forum users.
There is some overlap between your Forum Rules and your Terms and Conditions. Your Forum Rules should be concise and easily read and understood by your visitors. Your Forum Rules should then be included in your Terms and Conditions. And your Terms and Conditions should be comprehensive and cover the following:
- What users can and cannot post on your forum
- Who owns the intellectual property rights of content posted on your forum
- Limitation of liability for content posted in your forum
- How disputes are handled
- When you can terminate a user’s account and ban them from the forum, etc.
What legal notices do I need if I run advertisements on my forum?
If you have advertisements or paid endorsements on your forum, then it needs to be clear to your users that these are in fact advertisements or paid endorsements.
Under section 2.7 of the Australian Association of National Advertisers (AANA) Code of Ethics: “Advertising or marketing communication shall be clearly distinguishable as such to the relevant audience”.
What legal notices do I need if I have paid subscribers?
If you offer a paid subscription to your forum, you need to include details in your Terms and Conditions. For example:
- Subscription pricing structure
- Refund and cancellation policy
- Forum uptime and availability
- Minimum age requirement, etc.
If some parts of your forum are accessible to non-subscribers and other parts are only visible to paid subscribers, then it may be more appropriate to have a separate Terms and Conditions for each.
If you need help drafting your forum Terms and Conditions, we can help. So get in touch.
Managing a Forum
Can I ban people from my forum?
While you may feel that your forum is your property – and you should have the right to do whatever you like with it – some users might consider that their profile on your forum is a valuable asset. For example, it could provide them with a steady source of referral traffic and customers for their own business. Your Forum Rules and your Terms and Conditions will constitute a contract between you and your forum users. If you randomly, without cause or the rights outlined in your Terms and Conditions, block this forum user then, you may run the risk of legal action from that user, as they try to obtain compensation for the loss you have caused to their business.
So it is definitely possible to ban people from your forum, but your Forum Rules and Terms and Conditions need to make it clear how and why you may ban people. Then when banning someone, make sure you follow your documented procedures, for example, you may be required to provide a warning before banning somebody for good.
Should I include a minimum age limit for accessing my forum?
Yes. Australian legislation and codes of practice require internet service providers and internet content hosts to take reasonable steps to ensure that internet access accounts are not provided to children under 18, without the consent of a parent or responsible adult.
If your forum is accessible in other countries, you may also need to consider relevant laws in those jurisdictions. For example, in the USA there are laws that create specific restrictions in relation to children under the age of 13.
What are my responsibilities for keeping forum user data private?
The Privacy Act of 1988 applies to Australian businesses and sets out the Australian Privacy Principles (“APPs”) which dictate how businesses must deal with user data. Under these principles, businesses must:
- Implement practices, procedures and systems to ensure compliance with the APPs and to handle complaints.
- Take reasonable steps to protect user data that is collected or held.
- Take reasonable steps to ensure that user data collected is accurate, complete and up to date.
- Give individuals access to their data on request.
- Correct the data when they become aware that it is inaccurate, incomplete, out of date, irrelevant or misleading.
- Only collect user data if it is necessary for the function or activity of the business.
- De-identify or delete unsolicited user data as soon as is practical, if it is not necessary for the function or activity of the business.
- Not use or disclose personal information for a purpose different from the original purpose of collection.
- Ensure the individual’s consent before collecting and using personal information.
- Not use or disclose personal information for a direct marketing purpose, except in limited circumstances.
For smaller businesses it is possible that the Privacy Act may not apply. But for the avoidance of doubt, it is good practice to observe the APPs anyway and handle user data appropriately.
What are my responsibilities under GDPR rules?
GDPR rules came into effect in the EU in May 2018 and apply to some Australian website operators too. If you meet any of the criteria below you will need to comply with GDPR (or risk fines):
- You collect the email addresses of UK or EU citizens
- You sell goods and services to UK or EU citizens
- You ship products to UK or EU citizens
- You offer goods and services priced in Euros, British Pounds or Swiss Francs
- You market your goods and services in an EU language (other than English)
- You refer to customers from the UK or EU on your website (e.g. in testimonials)
- You have a branch, administrative office or company registered in the UK or EU
- You process personal data of UK or EU citizens (e.g. customer support for an EU company)
- You “monitor the behaviour of UK or EU citizens” (e.g. track EU citizens with cookies for the purposes of profiling, customising online ads, etc.)
For more detailed information, see our feature article: How to Comply with GDPR.
What business structure should I use for my forum?
In Australia, there are generally 4 options for structuring your business:
- Sole trader
- Pty Ltd Company
- Partnership, and
The best business structure for you will depend on your personal circumstances – and getting this decision right is very important. So talk to your accountant about the pros and cons of each option. Here’s a quick summary of each option.
Being a Sole Trader is the simplest and least expensive option. Designed for business owners who are the sole proprietors of their companies, this structure doesn’t give you much protection if things go wrong. Your personal assets are unprotected from any claims arising from your business.
Incorporation (i.e. forming a Proprietary Limited Company) effectively makes your business a separate legal entity from you. This structure involves quite a bit of paperwork and can be more expensive to maintain but it offers your personal assets protection from liability. Only your company assets are at risk in the event of any legal actions and company debts.
Creating a Partnership allows you to go into business with multiple people and share income. Partnerships are easier and less expensive than Companies to set up. However, all partners together are personally responsible for business debts and actions against the Partnership. And each partner is individually liable for debts incurred by the other partners. This means you have unlimited liability, unlike a Company structure.
A Trust isn’t an organisation at all, but instead a legal structure to hold assets. For example, you might set up a Trust to hold your business assets, then appoint a Trustee to manage them. Commonly, the Trustee is a Company and the Trust provides asset protection and limits liability from operating the business. Trusts are very flexible for tax purposes. However, a Trust is a complex legal structure and establishing a Trust costs significantly more than a Sole Trader or Partnership.
For more detailed information on each of these business structures, see our feature article: How to Choose the Right Business Structure in Australia.
Do I need liability insurance to run an online forum?
Some forums inherently have more risk than others. For example, running an investment forum has more risks associated with it than say, running a forum about birdwatching. Liability insurance might protect you from:
- Breach of copyright on your forum
- Defamation on your forum
- Forum visitors losing money on an investment recommended on your forum
- A security breach and loss of personal data
- Injury on your property if you have a physical presence, such as an office or showroom
- Damage or theft of your business equipment
- Work related injury of an employee, etc.
Exactly what forms of insurance you require will depend on the nature and structure of your business. Therefore, you should seek legal advice and discuss your situation with an insurance broker.
We hope you found this legal guide to Running an Online Forum in Australia helpful.