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Last Friday afternoon, the Court of Appeal delivered judgment in Murray v Wishart. Amongst a host of issues, the Court revisited the liability for Facebook page hosts in respect of comments posted by third parties.

The High Court judgment – the decision appealed against – had held that Facebook page hosts were to be regarded as liable publishers of third parties’ defamatory comments under two circumstances:

  • First, where the host had actual knowledge of the comments and failed to remove them within a reasonable time, so as to imply the host was taking personal responsibility for another's posting (“the actual-knowledge test”); and
  • Secondly, where the host did not know of the comments but, in the circumstances, ought to have known that comments were being posted that were likely to be defamatory (“the ought-to-know test”).

The Court of Appeal held that the actual-knowledge test was consistent with existing case law. It remains the current standard.

However, the Court rejected the High Court’s ought-to-know test – the important aspect of the judgment.

Basically, the Court of Appeal held that the ought-to-know test imposed a burden on Facebook page hosts that was too strict and uncertain for the digital era. Further, it was reasoned that the ought-to-know test conferred essentially a standard of defamation through negligence, an approach New Zealand courts have consistently rejected. Ultimately, the Court deemed that the ought-to-know test encroached unduly on modern norms of freedom of expression as enshrined by s 14 of the New Zealand Bill of Rights Act 1990.

In ascertaining the limits of the actual-knowledge test, the Court drew comparisons with two non-Internet scenarios.  

The first is that of a club’s noticeboard on which a defamatory comment is pinned. The Court considered that, consistent with Facebook page hosts, the club’s proprietor would be liable for the noticeboard comment only after he or she had actual knowledge of it and had failed to remove it within a reasonable time, without which no inference could be drawn that he or she had taken personal responsibility for the comment’s posting.

For Facebook users, this means that if you start up a page, you won’t be liable for others’ defamatory comments unless it can be inferred that you had actual knowledge of them, and failed to remove them within a reasonable time. Such inference could be drawn obviously if you were to respond to the comment on the page. Further, it is likely such inference could be drawn in respect of pages which attract fewer comments, since it could be more reasonably inferable that you, the host, would have seen the comments and had made a conscious decision not to remove them. However, on a Facebook page like Mr Murray’s in the present case – which attracted some 250,000 comments – it is reasoned that one should not bear responsibility for all comments published to the page. To hold otherwise could have a chilling effect, and prevent people from engaging in matters of public interest – indeed quite the opposite of the promise of the Internet.

The second example the Court adopted, by which the current law can be rationalised, is that of a public meeting. On the Court’s reasoning, if you organised a public meeting – at which you invited others to make comments on the matters under discussion – you would not be liable for others’ defamatory comments without a clear inference that you had adopted those comments in some way so as to ratify them. Like the club-noticeboard analogy, to impose liability on the organiser of a public meeting, simply because he or she organised it, would have a chilling effect that would clearly prove inimical to fostering democratic dialogue.

The same reasoning is applicable to a Facebook page context. That is, if you start a Facebook page and invite users to comment – à la Mr Murray – it would unreasonable that you should be automatically liable for others’ defamatory comments, without an inference that in some way you ratified the substance of the comments.

Accordingly, the important thing to remember – the key to keep you out of the courtroom – is to be diligent. If you are aware of defamatory comments posted to a social medium you host, remove them as soon as possible.

One final thought: It is possible this case’s reasoning could be extended to, say, a forum thread which you establish on another person’s site, but for which you do not have administrative privileges to edit and/or delete content. Playing devils advocate – that you along with the administrator of the forum site could be liable for others’ defamatory postings – if you cannot delete others’ comments, it is advisable that after seeing another’s defamatory comment, you contact the site’s administrator to have the comment deleted or, at the very least, make a comment in reply that expressly disassociates yourself from the defamatory comment.

 

Click here to download the Judgment.