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01 October 2013
New Zealand, like many other jurisdictions, has been grappling with the new legal issues arising from the upsurge in communication online and, in particular, social media use.
An area that has recently received attention is the extent to which a person or entity that hosts or republishes content created by third parties online (eg, search engine operators, blog hosts and owners of Facebook pages) can be held liable for defamatory content generated by users. Two recent High Court decisions have clarified the approach in New Zealand. It is now clear that hosts are prima facie liable for content generated by third parties, but whether a host is liable in any particular case will depend on the circumstances.
The first case to address liability for third-party publication was A v Google New Zealand Limited.(1) The case involved allegedly defamatory statements made against the plaintiff, a medical practitioner, on a US website. When the practitioner's name was searched on Google, the results included references to the defamatory material (in the form of snippets of information taken from the defamatory website) and links to the website. The plaintiff had previously complained to Google about the results and had requested that it block access to the websites in its search results. Google had removed the results, but had not prevented the information and links from being republished and reappearing on Google search results.
The plaintiff sought summary judgment against Google New Zealand on the basis that the information was clearly defamatory and Google was aware that it was being published in its search results. Google New Zealand opposed the application and cross-applied for a defendant's summary judgment. It argued that it was the wrong defendant, as the New Zealand company was a shell company, and that another entity – the US parent company Google Inc – owned and operated the search engine. It also argued that publication of automatically generated search results by a search engine operator does not amount to publication for the purposes of defamation.
Given the circumstances, the court was satisfied that Google New Zealand was not the correct defendant, as it had no control over the search engine or ability to remove web addresses from search results. Accordingly, the court did not need to determine whether the search engine was a 'publisher' of defamatory content in search results. While not deciding the issue, Associate Judge Abbott doubted that search engine hosts could be exempt from liability per se and expressed a preference for a contextual approach that recognised that search engines were publishers, but with access to defences in appropriate circumstances (eg, where there is no knowledge or notice of the defamatory content).(2)
The subsequent High Court decision in Wishart v Murray(3) considered the test for host liability for third-party publications in more detail. This case involved an unsuccessful application to strike out a cause of action based on comments made by third parties on a Facebook page created and controlled by the first defendant. The substantive proceeding is ongoing.
The first defendant in Wishart created a Facebook page that urged people to boycott a book authored by the plaintiff. The book related to the high-profile murder of the Kahui twins, a polarising case in New Zealand in which the father was acquitted of murder, but was later found by the coroner to have had sole care of the baby twins at the time of the causative acts which resulted in the deaths. As part of his defence at trial, the father had suggested that the babies' mother was responsible for the killings. The babies' mother then collaborated in the writing of the plaintiff's book and, in doing so, was the subject of significant public interest and controversy. As well as causes of action relating to statements made personally by the defendants on Twitter and Facebook, a fourth cause of action was based on comments by unidentified third parties posted to the Facebook page created and controlled by the first defendant, Mr Murray.
Murray sought to strike out that cause of action on the basis that, as a mere host of the Facebook page, he was not the publisher of the comments posted by third parties. A primary issue was the correct legal test for determining whether the host of a Facebook page is the publisher of statements posted on that page by others. Justice Courtney took the opportunity to undertake a thorough review of the growing body of jurisprudence (and conflicting approaches) dealing with this point from the United Kingdom, the United States, Australia and New Zealand.
The judge began the review by reference to the well-known first principle, established in the 19th century case of Emmens v Pottle,(4) that anyone who participates in or contributes to the publication of another person's defamatory statement is prima facie liable as a publisher. Counsel for Murray had argued that, in the context of website hosts that play no active part in publication, the test should be one of actual knowledge. The court was referred to the line of UK and Australian cases dealing with anonymous posts on public notice boards, where it was held that the owners of the notice boards could be held liable in defamation only if it could be inferred that they had assumed responsibility by failing to take action after becoming aware of the offending notices (Byrne v Deane and Urbanchich v Drummoyne Municipal Council).(5) The judge also noted that in Sadiq v Baycorp (NZ) Limited(6) the New Zealand High Court had applied the reasoning in Byrne and Urbanchich to online publication, and held that a defendant could not be taken to have assumed responsibility for defamatory material placed on its website by the previous owner of that website unless it knew about the material.
The judge also traversed the line of English decisions that began with Bunt v Tilley,(7) where it was held that an internet service provider that provides access to, but does not post, defamatory material is a mere passive participant and not liable as a publisher. This line of reasoning culminated with Justice Eady's decision at first instance in Tamiz v Google,(8) where it was held (in the context of a blog service hosted by Google) that websites hosting third-party content play only a passive role and do not publish the hosted content for the purposes of defamation law. Tamiz was reversed on appeal, where the English Court of Appeal confined Bunt to its facts, rejecting the notion that sites that host third-party material play merely a passive role and holding that, based on the principle in Emmens, a host is prima facie liable for defamatory content posted by third parties.
After careful consideration of the authorities, the judge rejected the 'actual knowledge' and 'passive participant' approaches and preferred the approach applied by the English Court of Appeal. Using a notice board analogy, she explained that the host of a Facebook page has created a notice board where third parties can post comments, but the host retains the ultimate power to control both the content and the ability of third parties to post. On this basis, the judge concluded that the host can properly be regarded as a publisher liable for any defamatory content posted by third parties in two circumstances:
Applying this test to the facts, the judge considered that it was tenable that Murray was a publisher of the third-party comments on his Facebook page, so the cause of action could not be struck out. Murray's own evidence was that he had monitored the page closely, had taken frequent steps to remove posts and had blocked users whose posts he considered defamatory or otherwise inappropriate.
The recent High Court decisions have provided some clarity in New Zealand to what is internationally an unclear area of law in a quickly evolving technological environment. In Wishart the court confirmed the approach foreshadowed, but ultimately not decided, in A v Google and applied an approach consistent with that recently preferred in the United Kingdom.
These cases can also be welcomed as timely confirmation of well-established defamation principles, albeit applied to a new and novel form of publication. In essence, they confirm the general rule that anybody who assists in or repeats the defamatory publication of another is prima facie liable as a publisher of that material. However, it is also now clear that, depending on the circumstances, something akin to the statutory defence of innocent dissemination may be available to those who host defamatory content created by third parties.
Applying the Wishart test to any particular case, it should be straightforward for intending plaintiffs to determine whether a host has acquired actual knowledge of defamatory material posted by a third party and failed to remove it within a reasonable time. What may prove more problematic is determining the scope of circumstances in which a host should have known that content is being generated by third parties that is likely to be defamatory. If Wishart proceeds to trial, the substantive determination should provide some clarification on this.
In terms of risk management for those that host third-party posts online (eg, website owners or Facebook administrators that allow user comments), the key will be to keep a close eye on content posted, and to have mechanisms in place to respond to complaints and remove content quickly.
For further information on this topic please contact Allison Ferguson or Guy Tompkins at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email (email@example.com or firstname.lastname@example.org).
(1) HC Auckland, CIV-2011-404-002780, September 12 2012.
(2) See Paragraphs  to .
(3)  NZHC 540, HC Auckland.
(4) (1885) 16 QBD 354.
(5) Byrne v Deane  1 KB 818 (CA); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 69, 190.
(6) HC Auckland CIV-2007-404-621, March 31 2008, at  to .
(7)  EWHC 407 (QB).
(8)  EWHC 449 (QB).
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