Ursula Cheer, Professor of Law, University of Canterbury, Christchurch, comments on the results of Karam v Parker [2014] NZHC 737.

This case shows how very careful you have to be when publishing statements online about someone.

Briefly it sends the following warnings:

• even when you publish the statements of others, you may be liable for those if you actively publish them - for example, by acting as an administrator of a website or page where you encourage people to post;
• social media are no different from ordinary websites- if you publish there you are just as much at risk of a defamation action if you get it wrong;
• in fact, online publishing may be more dangerous because if you publish deliberately, you will be seen as taking advantage of the opportunity to send the message far and wide, and may lose useful defences such as qualified privilege;
• you may have an honest opinion defence for comments posted online, but there must be a well-known factual background to support the opinion or you should state the facts in support of each comment that is posted;
• the more serious the untrue statements that are published online, the higher the damages will be.  Alleging someone is dishonest, lacks integrity or has engaged in fraud is serious;
• statements online can go far and wide and stay around for a long time, so this will increase damages, especially if you promote the website in some way;
• damages in online cases may also be large because they tend to involve numerous posts, each of which may be different and each of which may justify a separate claim;
•  additional punitive damages (to punish rather than compensate) can be awarded if you deliberately persist in the defamation in some way, such as reinstating a website having agreed to take it down.
• it is risky to represent yourself or not to turn up to put forward a defence. The law is technical and the case will not go away;
• costs can be significant and if indemnity costs are granted as they were here because of how poorly the defendants argued their case, can be as high as or higher than the actual damages.

Case summary and comment

This case involved a claim by well-known sportsman, businessman and writer, Joe Karam, against a Mr Parker and a Mr Purkiss for numerous statements published online in the context of discussion about the intensely publicised retrial of David Bain and his acquittal of the murders of his family. Mr Karam is a supporter and friend of David Bain and was closely involved in the successful attempt to clear his name and the court cases. The defamation claim arose from comments on a Facebook page, on a website called ‘Counterspin’, on Trademe and onYoutube.  Mr Parker defended himself in the proceedings and Mr Purkiss made no appearance at all.

Liability as online publisher of statements from third parties

The first matter addressed by the High Court was whether or not Mr Parker could be liable as a publisher of the statements of third parties published online.  Courtney J rejected an attempt by Mr Parker to argue that he was merely an innocent disseminator under s 21 of the Defamation Act, and applied her approach in Wishart v Murray [2013] NZHC 540, [2013]3 NZLR 246, [13] that those who host Facebook pages or similar sites are publishers of postings made by others either if they know of the defamatory material and do not remove it within a reasonable time (so it can be inferred they are taking responsibility for it), or they do not know about the defamatory statement but there are circumstances that mean they ought to know posted material is likely to be defamatory.  Mr Parker was an active group administrator of the Facebook page.  He edited and removed comments and warned other posters about not posting defamatory material.  He eventually resigned as administrator but even after that point, continued in some aspects of the role. He had even more control over the Counterspin website which he set up as a moderated forum to tell what he saw as the other side of the Bain retrial and its outcome. Due to the active control he exercised on both sites, the judge found Mr Parker could not use an innocent dissemination defence and could be liable for his own posts and those of third parties published on the sites.

Truth, qualified privilege and political discussion defences

Mr Parker abandoned a truth defence during the trial and apologised in court to Mr Karam. Therefore, the judge addressed each of the numerous claims separately to determine whether the defence of honest opinion could apply. Even when a fairly generous approach was taken to the statements, with a number weeded out because they were not defamatory or about Mr Karam, or were not suitably supported by facts, approximately 50 remained which were opinion unsupported by either stated facts or a well-known factual background. The only possible defence remaining for these was qualified privilege.

In order to decide whether qualified privilege could apply, the Judge had to find that the political discussion defence from the Lange decision, which protects untrue statements made about MPs past, present or future so long as some care has been taken by the publisher, can be extended to cover statements about a public figure like Mr Karam.

Mainstream and new media -  treatment and responsibility

The judge was inclined to open the door a little but not so far as to cover this case (paras [201]-[220]) She considered that discussion of local government issues might be within the idea of political expression, but concluded that it would be going too far to also include statements posted on websites established to facilitate the free exchange of ideas on matters that interest members of the public.[210] In this, the Judge differentiated between mainstream media and new media, implying that the latter will find it difficult to claim the defence.  Facebook is described in the judgment as facilitating the mere exchange of views rather than making available to the public information that is not readily available as traditional media do. [211]  Further, the Court considered that although the Counterspin website was set up to provide information to the public about the case, as a vehicle to express Mr Parker’s views it did not appear to give rise to a duty to do so.[212]

With respect, this focus on a need for a duty/interest relationship is misplaced. The Lange defence defined the subject matter to which it could apply, with the result that if the subject matter is right, then the duty/interest relationship is taken to exist even for information that is published to a mass audience.  The Karam decision is too restrictive in this respect.  Furthermore, in favouring traditional media over new media, it sidelines the increasingly important public interest functions of new media. This also ignores the fact that the Lange defence has always been potentially available to all defendants, not just traditional media. (For example, in Smith v Dooley [2013] NZCA 428 the defence was applied to two non-media defendants, though ultimately lost.)  To return to the focus on a close duty/interest requirement would be to impose on Lange shackles it apparently threw off.  The only question to be answered is whether the subject matter in Lange could be expanded to take in statements about a public figure like Karam.  I have argued elsewhere that the Lange defence is a nascent public interest defence which should expand to take in matters of general public interest. (See Burrow and Cheer, Media Law in New Zealand, (6^th ed, 2010, Lexis Nexis), 135). Furthermore, it would be inconsistent to allow the honest opinion defence to apply to blogs and websites even though they are not like traditional media, while at the same time, make it almost impossible for a public interest defence to apply.

The Court also considered whether, if the Lange defence had been available, it would have been lost due to ill will or improper use of the opportunity to publish. (Defamation Act 1992, s 19).  Courtney J here found against Mr Parker and suggested that the nature of publication in new media may give rise to a need for greater responsibility due to the ability to publish widely and indefinitely, and to manipulate accessibility, such as by formatting a site to give prominence in Google search results, as Mr Parker stated he had done. The implication of this finding is that it will be harder to those in Mr Parker’s shoes to show they have not misused the opportunity to publish online.

Damages for the approximately 50 statements which were found to have no defence totalled $525,000, being $340,500 compensatory damages apportioned to Mr Parker, and  $184,500 to Mr Purkiss.  A further award of $10,000 punitive damages was made. Compensation took account of Mr Karam’s significant and positive reputation, the serious effect of the statements on him personally, the defamations were serious and damaging – ‘a full scale assault’[229] on his reputation, the statements were published on a large and persistent scale and were given prominence by Mr Parker online and in an interview with media, a weak truth defence had been persisted with and although an apology was made, this did not occur until some time into the trial.  The punitive award reflected the fact that Mr Parker had been well aware of the statements and had made attempts to limit his own liability on the Counterspin website while encouraging others to continue if they wished on Facebook.

High damages

The damages total is high and will be a shock to Mr Parker and Mr Purkiss.  Courtney J  did use two unusual cases as guides - the Siemer case where Mr Siemer was a persistent and deliberate defamer, and the Lee case, where the defendant was unrepresented, so there may be room to argue the compensatory award was too much.  On the other hand, public figures do tend to get higher awards because of their more public reputations, and the higher the number of publications, the higher the total will be. An indemnity costs award was also made which may double the defendants liability here. It was based on the inadequate presentation of the defence, a clear warning that self-representation in such cases is not a good idea and maintaining vexatious defences is just as risky as bringing vexatious claims. Mr Parker certainly did himself no favours by fighting on in court and online. However, there is a niggling suspicion that high awards can tend to emerge where defendants do not turn up or try to represent themselves, and courts must take great care maintain fairness in the circumstances.

An order was also made for removal of the defamatory statements and a permanent order to prevent further statements was made in addition. It seems unlikely Mr Karam will receive any damages and perhaps a declaration would have been a more appropriate remedy. However, the decision will certainly chill many a campaigning blogger and website administrator and will promote a less casual approach to using social media and new media forums to publish speech about others.

Article by  Ursula Cheer, Professor of Law, University of  Canterbury,  Christchurch