Ursula Cheer, Professor of Law, University of Canterbury, comments on defamation, liability, publication, the internet and the recent HC case: Wishart v Murray [2013] NZHC 540 (19 March 2013).

Who is ultimately responsible for what is published? Google? Facebook? Twitter?

I have previously blogged on how far internet service providers (ISPs) seem to be liable for defamation on the internet by providing access for subscribers.  In that post, I discussed the English case, Tamiz v Google Inc [2012] EWHC 449, which  involved a claim arising from a statement posted by a blogger on the popular Blogger platform on a blog called the London Muslim blog.

In the High Court in that case, the judge, Mr Justice Eady, thought much depended on the facts in each case and decided that there, Google was like an owner of a wall covered in defamatory graffiti where failure to remove does not necessarily make the owner a publisher.

I need to update the outcome of that case. Tamiz has now been to the Court of Appeal, which disagreed with the approach in the court below and held that although not a primary publisher of the blog in this case, Google still defined the limits of permitted content and had the power and capability to remove or block access to material which it was notified about. Therefore, liability could follow for the period after which Google was notified of the statement.  However, the potential liability was too short to give rise to a real and substantial tort, because the offending blog was removed very soon after notification: (Tamiz v Google Inc [2013] EWCA Civ 68 at [48]).

Is a host accountable for 3rd party comments/content?

In that previous blog, I also discussed the New Zealand decision of the High Court, A v Google New Zealand Ltd HC Auckland, CIV: 2011-404-002780, 12 September 2012, where the claimant argued he was defamed by the publication of results which pointed to a website in the United States containing allegedly defamatory statements.

I noted that the judge in that case expressed a reluctance for exempting internet third party publishers from responsibility and a preference for holding them liable for publishing where appropriate, with access to the defence of innocent dissemination or other appropriate defences.

That approach has been fortified by a new New Zealand decision on third party internet publication, Wishart v Murray [2013] NZHC 540 (19 March 2013). The issue arose in this case in relation to comments by anonymous third parties on a Facebook page established by the defendant, who had also used Twitter to publicise the page. The page was set up to discuss the impending release of a book co-authored by the plaintiff and Macsyna King, the mother of the Kahui twins who died from non-accidental injuries in 2006. The defendant argued the part of the claim relating to the anonymous posts by third parties should be struck out because as the mere host of the Facebook page, he was not a publisher.

Mr Murray argued that Facebook owned the service and had ultimate control of the contents of the page. He disclosed that he moderated the site by identifying and removing abusive, threatening or defamatory comments, and blocking the relevant users. He also solicited reports about the presence of such comments from his followers on Twitter. However, he acknowledged that when the page attracted some 250,000 comments in total, he found it difficult to review them all and remove potentially harmful ones as previously.  He finally took the site off line on or about 13 August 2011.

Prima facie liability

In the judgment, the judge, Courtney J, carries out a careful and comprehensive review of the development of the law to date. The first principle noted is the general rule that there is prima facie liability for anyone who participates in or contributes to the publication of the defamatory statements of others.

A very old case, Emmens v Pottle (1885) 16 QB 170, is referred to as authority for this proposition. To quote the judge, it is ‘clear that the absence of actual knowledge does not prevent a person who, prima facie, publishes a defamatory statement from being liable; there must also be no reason to think it likely that the material being published contained such a statement (at para 83).

'Graffiti on the wall’ approach overturned

In Wishart, the defendant had argued that actual knowledge is required in relation to website hosts, referring to a recommendation made by the Law Commission in a report in 1999 (Electronic Commerce part 2). The Law Commission view was based on a US approach which was essentially the ‘graffiti on the wall’ approach favoured by the lower court in Tamiz that has now been overturned. Similarly, the court in Wishart rejects this approach, preferring Emmens and the more recent English approach being applied to publication on the internet.

Justice Courtney surveys the English law favourably, but highlights that Bunt v Tilley [2006] EWHC 407, another decision of Mr Justice Eady which accepted that internet service providers that did not hold any information or host a website were passive parties and could not be publishers of defamatory material posted online, is out of line and indeed irreconcilable with other decisions. The judge in Wishart then proceeds to strictly confine Bunt v Tilley to situations where the ISP role is truly entirely passive and there is no notification of the presence of defamatory material at all. Other English cases, such as Davison v Habeeb [2011] EWHC 3031, have also distinguished Bunt, using the analogy of blogs being like noticeboards over which ISPs do have control.

'... hosts cannot be passive instruments'

At this point, it is reasonably clear where Courtney J’s sympathies lie, and these are in a similar direction to that suggested by the court in A v Google. The decision is that the host of a Facebook page has established something akin to a noticeboard, which can be either public or private. In either case, the host has the ability to control postings and block users. This means such hosts cannot be passive instruments or mere conduits of information.

The court goes on to state clearly (at para [117]) that such hosts will be publishers of anonymous postings in two situations:

1. Where they know about the defamatory statement and fail to remove it within a reasonable time such that it can be inferred they are taking responsibility for the statement (this could be called the ‘actual knowledge and failure to act test’);
2. Where they do not know, but ought to, that defamatory statements are likely in the circumstances (the ‘imputed knowledge test’).

Establishing who is the publisher

Accordingly, on the facts in Wishart, it was arguable that the defendant was a publisher of the anonymous comments. He was not a passive instrument and it appeared likely that even if the first circumstantial test set out above was not satisfied, the second would be. The result is that this part of the claim can be argued further.

Clearly the first limb of the circumstantial test set out above will be more straight forward to apply to the facts in any given case.  Although the second limb is more problematic because tests based on imputed knowledge require greater supposition, this concept is not unknown in the law. In fact, the entire two-step approach is very similar to that applied in the defence of innocent dissemination, which the judge notes could still be available to parties like the defendants in the Wishart case.

Applying the test

It seems likely that the test will be applied in a general way to determine the preliminary matter of who is a publisher, and then in a more detailed way to the question of whether the defendant, although a publisher, was actually innocently disseminating the material. However, it is quite difficult to conceptualise a situation where applying the test results in a finding that a defendant has published due to control, but that same control does not then prevent a defence of innocent dissemination from arising.  Hmmmm…..

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