Submissions to the Supreme Court, appealing the Court of Appeal decision of Wishart v Murray.
Submissions completed as a requirement of Law 449: Selected Topics on Media Law
- Introduction
- These submissions support the appellant, Mr Wishart, in appealing the decision of the Court of Appeal partially overturning the decision in Wishart v Murray [2013] NZHC 540, [2013] 3 NZLR 246.
- In that decision Courtney J declined to strike out Mr Wishart’s claims, finding it tenable that Mr Murray was the publisher of anonymous third party comments on a Facebook page he initiated.
- This submission proposes that there are two potential avenues for this court to find the appellant has a tenable claim in defamation against Mr Murray, overturning the Court of Appeal finding and enabling Mr Wishart to pursue his original claim at trial for damages for harm to his reputation.
- The first avenue is a finding that Mr Murray is a primary publisher of the third party comments (TPCs) and, in the alternative, the second avenue is a finding that Mr Murray is a subordinate publisher incapable of relying upon the statutory or common law defenses of innocent dissemination.
- Respondent is a primary publisher
- A primary publisher traditionally includes the author of a defamatory statement, or the publisher of the medium the statement appears in – for example the newspaper or television channel – and can include the printer although this is arguably no longer the case.[1]
- The introduction of the internet raised the issue of defamatory statements published on the internet and it is now uncontroversial that statements on the internet can be defamatory. The issue of how the multitude of parties involved in conveying those statements should be treated at law is less clear.
- In Oriental Press Group Ltd v Fevaworks Solutions Ltd Ribeiro J identifies two criteria to determine a primary publisher. [2]
- The knowledge criterion: “that he knows or can easily acquire knowledge of the content of the article being published (although not necessarily of its defamatory nature as a matter of law)”.
- The control criterion: “that he has a realistic ability to control publication of such content, in other words, editorial control involving the ability and opportunity to prevent publication”.
- Applying the first criterion to the present case it is arguable the respondent was aware of the likely content of the TPCs having initiated the Facebook page on the particular subject of Mr Wishart’s book and the inflammatory nature of the twitter messages he wrote promoting it. The fact he moderated and removed some comments is further indication of his knowledge of the type of comments being posted to the page.
- The obvious issue is whether the respondent satisfies the second criterion that he had sufficient “ability and opportunity” to exert editorial control prior to third parties publishing the comments.
- To determine this it is necessary to analyse the communication process of a Facebook comment to determine at what point it is ‘published’ in the law of defamation, whether the respondent could control the publication and therefore whether Mr Murray is a primary publisher.
- It is established law that publication on the internet occurs not when a statement is uploaded but rather when it is downloaded and communicated to a reader of that statement.[3]
- While the High Court strikeout application accepted the affidavit evidence regarding their Facebook page, a recent Canadian finding has determined the ubiquity of the platform would allow that court to “take judicial notice of some aspects of their nature and operation”.[4]
- With respect, Courtney J failed to take judicial notice of the following aspects of the nature and operation of Facebook:
- By default TPCs on Facebook generate notifications with potential to trigger publication. Depending on the settings used the administrator of the page will be notified when TPCs are posted as will other commentors in the same thread.[5]
- The automated nature of these notifications can create a virtually instant posting, notification and reading, and therefore publication of a defamatory statement.
- Alternatively, page administrators are able to apply settings to moderate individual comments prior to them being visible online.
- These functional aspects are indicative of both the respondent’s awareness of comments and their ability to moderate comments before or after publication.
- It will require a further finding of fact as to the actual time between TPCs being posted to Mr Murray’s Facebook page and their first downloading to determine when publication occurred.
- Although arguably only a persuasive decision, the recent case of Pritchard v Van Nes[6] is important for its specific analysis of the Facebook environment and for finding that, in circumstances where it could be anticipated that defamatory remarks would be made, there need not be a requirement of actual knowledge of defamatory comments as a precondition to liability.[7]
- The Supreme Court of British Columbia acknowledged and addressed the New Zealand Court of Appeal’s concerns about the ‘ought to know’ test in the present case including the need to balance freedom of expression under the New Zealand Bill of Rights Act 1992 by restricting liability for defamatory third party comments to circumstances where the Facebook host’s original posts are “inflammatory, explicitly or implicity inviting defamatory comment”.[8]
- This test would apply in the present case, recognising the respondent’s behaviour in creating then promoting the page via Twitter, and arguably the respondent could anticipate that defamatory statements would be published.
- Further to the control criterion and notwithstanding the finding in Fevaworks that the forum host was not a primary publisher, that reasoning distinguished Wishart v Murray in the High Court on the grounds that the volume of postings in Fevaworks made it unrealistic to prevent publication.
- The logical extension of that reasoning, in the present case, is that while the moderation of comments may have been time-consuming the volume was not such that it precluded control of the statements.
- In summary, this submission argues that the respondent had sufficient awareness to satisfy the knowledge criterion together with very realistic ability and opportunity to satisfy the control criterion. Therefore, a finding of primary publisher is sought.
- Respondent is a subordinate publisher
- The alternative to a finding of primary publisher is that the respondent is a subordinate publisher.
- Subordinate publishers have been defined as “not the printer or the first or main publisher of a work” and originally included magazine distributors and libraries.[9]
- This category of publisher can be liable in defamation for their role in contributing to the publication responsible for causing the reputational harm complained of. However, there are two potential related defenses available.
- Firstly, the statutory defense of innocent dissemination[10] is available for subordinate publishers who fall within defined classes of ‘processors’ or ‘distributors’ – which it might be argued could be interpreted in the current context to include the respondent.
- Secondly, there is the possibility that the common law defense of innocent dissemination may still be available for subordinate publishers not falling within the statutory classes.[11]
- This submission argues that neither defense is available to the respondent on the facts of the present case.
- Both defenses are predicated on the principle that without knowledge the respondent cannot be taken to have accepted responsibility for publishing the defamatory statement.[12]
- Much has been made of the respondent’s lack of knowledge in both the High Court and the Court of Appeal. However, both the common law defense[13] and s 21(b) also require that the person did not know the material was of a character likely to contain defamatory statements.
- Having instigated the page, removed inflammatory comments and blocked the appellant, Mr Murray cannot claim to have been unaware of the likelihood of further defamatory statements.
- Further, s 21(c) requires, as with the common law, that a lack of knowledge must not be due to negligence.
- Arguably, the failure of the respondent to use settings enabling him to prevent comments being published prior to moderating them displays a level of negligence sufficient to prevent either defense being available to him.
- The statutory and common law defenses require all three components be satisfied for the defense to be available to the respondent. This submission argues that, based on the argument above, that the respondent fails on the last two.
- Conclusion
- Finally, while commentators seek statutory reform to address the anomalies resulting from pre-internet legislation and inappropriate analogies derived from early print era cases, in resolving the present case I submit we must bring justice to the plaintiff, Mr Wishart, applying the law in its current form.
[1] Oriental Press Group Ltd v Fevaworks Solutions Ltd [2012] 15 HKCFA (Civil), [2013] 16 HKCFAR 366 at [79].
[2] At [76].
[3] Dow Jones and Company Inc v Gutnick [2002] HCA 56, [2002] 210 CLR 575.
[4] Pritchard v Van Nes 2016 BCSC 686.
[5] See explanation at https://en.wikipedia.org/wiki/List_of_Facebook_features#Notifications.
[6] In Pritchard v Van Nes, above at n 5, the plaintiff complained of noise emanating from the property of the defendant, who subsequently used her Facebook page to accuse her schoolteacher neighbour of taking an unhealthy interest in watching and videotaping her children in the back yard. Third party comments and discussion on the Facebook page eventually turned to the implication that the plaintiff was a paedophile.
[7] At [110].
[8] At [117].
[9] Matthew Collins Collins on Defamation (Oxford University Press, Oxford, 2014) at [16.42].
[10] s 21 Defamation Act 1992.
[11] See Collins, above n 9, at [16.41] for discussion of the residual scope for the common law defense.
[12] s 21(a).
[13] Collins, above n 9, at [16.29].