JUSTICE COURTNEY'S CHRISTMAS GIFT FOR PRACTITIONERS
Wishart v Murray and ors  NZHC 3363 (interlocutory judgment, Auckland High Court)
Round 3 of this ongoing proceeding...
In the latest instalment of New Zealand’s leading case on social-media liability – now entering its fourth calendar year of interlocutory skirmishing – Courtney J confronted vexed issues in social-media-borne proceedings, including:
- In what circumstances can multiple social-media postings by the same author be pleaded as a single cause of action?
- In what circumstances can multiple social-media postings by one or more third parties (for which the defendant is prima facie liable) be pleaded as a single cause of action?
- In what circumstances can a defendant be liable for third-party postings under incitement-of-defamation principles (i.e. when a defendant’s original publication incites re-publications of the sting)?
- In what circumstances can hyperlinking of defamatory material give rise to “endorsement/adoption liability” (i.e. what is New Zealand’s application of Crookes v Newton 2011 SCC 47,  3 SCR 269)?
- For limitation purposes, does New Zealand apply a single- or multiple-publication rule?
Her Honour also considered whether individual bases of liability – e.g. direct, vicarious, incitement-of-defamation and endorsement/adoption – must be pleaded as separate causes of action, as well as whether claims for exemplary damages based on vicarious liability could be sustained.
In 2011, journalist Ian Wishart wrote and published Breaking Silence, a book about the 2006 deaths of the three-month-old Kahui twins, an incident and subsequent court case that attracted nationwide attention in New Zealand. In writing the book, Wishart collaborated with the twins’ mother, Macsyna King. Chris Kahui, the twins’ father, had suggested at the trial in which he was acquitted of the twins’ murder that King had inflicted the fatal injuries. A coroner later found the twins died whilst in Kahui’s sole care, but King’s role in the twins’ death remained a subject of public debate.
Christopher Murray (D1), upon learning of the book’s imminent release, created a Facebook page entitled “Boycott the Macsyna King Book”. Murray used Twitter to publicise the page, and he, along with his wife (D2) and other users, posted comments on the Facebook page that were critical of Wishart and King.
Wishart issued proceedings against Murray, his wife, and Murray’s employer, Dimension Data New Zealand Ltd (“DDNZ”) (D3) – the latter on the grounds that, first, Murray’s activities were, in large part, carried out whilst he was at work using DDNZ’s communications infrastructure, and, second, that DDNZ encouraged Murray in his boycott against the book.
In March 2013, Courtney J delivered an extensive interlocutory judgment in respect of Murray’s liability for comments posted by third parties on the Facebook page (see a summary of the judgment here). In September 2014, the Court of Appeal overturned aspects of Courtney J’s judgment (see article on this judgment here). The Court of Appeal directed Wishart to re-plead his claim to identify the third-party postings of which Murray could be inferred to have had actual knowledge and failed to remove within a reasonable time (and thus for which, pursuant to the Court of Appeal’s ruling, he could be liable). Courtney J’s latest rulings are the result of an application heard in August 2015 in respect of Wishart’s fourth amended statement of claim.
Pleadings in respect of multiple statements by the same author
The defendants objected to Wishart having grouped together Murray’s tweets and Facebook posts, respectively, as constituting single causes of action.
Courtney J recognised that whilst a single online comment could, in itself, found a cause of action, there was a need for pragmatism:
Requiring each post in a Twitter feed or on a Facebook page to be pleaded as a separate cause of action could result in impossibly unwieldy pleadings and there is precedent for treating multiple publications as founding a single cause of action. (See .)
In terms of precedent, her Honour referred chiefly to Leigh v Attorney-General  NZCA 624,  2 NZLR 148, Phelps v Nationwide News Pty Ltd  NSWSC 130 and Burrows v Knightley (1987) 10 NSWLR 651. She concluded:
[I]n determining whether multiple statements by the same author can properly be seen as a single publication, there is no rigid dividing line between categories and reasonable minds may differ. It is generally for the plaintiff to select how to present a case and it will only be if the plaintiff’s choice is so untenable or so unfair as to warrant striking out that the courts will intervene. The relevant considerations are:
- where the case concerns related materials published by the defendant on different occasions, and it is clear that the defendant intended for the material to be read together or the materials contain internal references to each other so that the reader may reasonably be expected to read it together;
- the diversity of the content contained in each of the related materials and whether the same or different imputations must be pleaded for each; [and]
- whether the related materials were published to the same or different people. (See .)
In respect of Murray’s five tweets complained of, her Honour noted that four of them linked to the Facebook page, they were all published over a single day, they appeared chronologically on Murray’s Twitter feed, and their content overlapped. Her Honour further inferred that, based on evidence of Murray’s followers, there would have been substantial overlap of those who read the tweets. As a result, the Judge ruled no substantial unfairness arose from the tweets being pleaded as a single cause of action. (See .)
Murray’s Facebook statements at issue, meanwhile, comprised the Facebook page’s “info statement”, a post on 28 June 2011, and two separate posts published on 4 July 2011. The Court of Appeal, in its determination on meanings capability, had read the statements together in assessing Wishart’s imputations. That, for Courtney J, was sufficient grounds to determine that the posts could be grouped as a single cause of action. Her Honour was also persuaded by the similarity of imputations arising from the posts, and, further, perceived the “info statement” served “as a consistent backdrop to other posts made on the page”, thus providing further linkage. (See .)
Pleadings in respect of multiple statements by different authors
The defendants took particular objection to Wishart’s grouping together of 66 third-party Facebook posts as a single cause of action. The defendants argued that, in terms of r 5.17 of High Court Rules and s 7 of the Defamation Act 1992—
- each communication of defamatory matter is a separate actionable publication;
- multiple causes of action must be pleaded separately, each delineated by some introductory phrase;
- it must be made clear upon which particular pleaded facts each cause of action is based;
- a separate remedy must be sought for each cause of action; and
- provision by the plaintiff of further particulars does not excuse material breaches of the rules as to pleadings. (See .)
Courtney J recognised the difficulties that could arise with multiple third-party statements being grouped together, particularly with regard to the defence of honest opinion. Nevertheless, she maintained there was “a need for pragmatism”. (See .)
Accordingly, in respect of cases that concerned a single thread on a Facebook page that contained multiple allegedly defamatory third-party postings, her Honour adopted the reasoning of HHJ Moloney QC – sitting as a High Court Judge – in McGrath v Dawkins  EWHC B3 (QB) (see Inforrm article on that case here), where his Honour stated, in a case that concerned comments posted under Amazon reviews:
 A special feature of chatroom or forum publications is the way in which the thread of words published on the site is continually evolving by the addition of new comments. Depending when a particular reader views the thread, he may see some or all of the eventual total number of comments. In theory this can have several consequences for defamatory meaning and liability.
a. While the website operator is prima facie liable for all the contents of the thread, individual contributors are of course liable only for their own words.
b. Those individual contributions must be read in the context of the earlier contributions, which may affect the meaning of the latest one.
c. As later contributors add further comments, the context of the thread as a whole will change. This will affect the meaning of the whole thread, for which the operator is liable; but an individual contributor cannot be held liable for a change in the meaning of his contribution, brought about by the later contributions of third parties which alter its context.
d. Strictly speaking, whenever a new contribution was added, the thread would become a new publication with a different meaning. In the case of a thread with more than a few entries, it would rapidly become impracticable for a judge, let alone a jury, to ascribe a separate defamatory meaning at each point, and then apply it to such meaning-dependent issues as justification.
e. The only practicable course here is to adopt the general approach of treating the final thread as a single publication for context and meaning purposes (albeit with several authors of distinct parts), while carefully avoiding the injustice of holding an individual contributor liable for any material changes in the meaning of his contribution brought about by later contributions from others. (See .)
In the event, her Honour’s application of these principles proved relatively simple because Wishart’s cause of action was limited to a series of comments posted in a single thread over just 20 minutes – albeit by multiple authors. As a result, Courtney J was satisfied Wishart could maintain this singly pleaded cause of action. (See .)
However, the Judge made clear the Court would not permit these comments to be regarded as “representative” of all the allegedly defamatory third-party postings that had been published during the Facebook page’s existence, as Wishart had apparently sought; the Court could determine only those statements put before it. (See .)
Wishart alleged that one of Murray’s initial statements was to the effect that he had paid the twins’ mother so that she was profiting from the book. Wishart alleged that, as a result, many of the third-party comments in that Facebook thread were repetitions of (the sting of) Murray’s own statement, and that such repetitions, along with a “boycott message” posted by third parties to several bookshops’ Facebook pages, should be regarded as the natural and probable consequences of Murray’s initial statement.
(The Court of Appeal in its earlier judgment noted that Murray’s “incitement” of others’ alleged defamatory statements was a major bone of contention for Wishart – hence the adoption of that terminology in this summary.)
Courtney J noted, with a nod to the McManus v Beckam  EWCA Civ 939 line of authorities—
a frequent confusion in the cases on this point as to how the republications should be pleaded – whether the republications constitute their own cause of action for which the original publisher can be directly liable; or whether they are part of the original cause of action and simply go to increase the damage that flows from the original publication.
Her Honour permitted Wishart to sustain this cause of action, but suggested “it may be preferable to plead it as being additional damage as part of the causes of action founded on the original publications of Mr Murray’s own tweets and Facebook posts”. (See -.)
Wishart further argued Murray was separately liable for third-party comments on the Facebook page owing to—
- hyperlinks to the page from Murray’s Twitter account;
- an email Murray sent to a superior at DDNZ, in which Murray encouraged him to publish on the company website a hyperlink to the page; and
- radio interviews in which Murray allegedly promoted the page.
With regard to this “endorsement/adoption liability”, Courtney J recorded the distinction between the judgments of the Canadian Supreme Court in Crookes. The majority had held that liability did not arise from hyperlinks – said to be akin to a “footnote” – unless the hyperlinked material effectively repeated the defamatory content (e.g. a URL hyperlink to a defamatory news article where the URL contains the headline, which is defamatory in itself). However, in a separate concurring judgment, McLachlin CJ and Fish J suggested liability may be founded where the text of a webpage includes a hyperlink to defamatory material, and the text indicates “adoption or endorsement” of the hyperlinked material.
Courtney J further noted that, in Visscher v Maritime Union of Australia (No 6)  NSWSC 350, the Supreme Court of New South Wales followed the latter test, requiring, to found liability, “an approval, adoption, promotion or some form of ratification of the content of the hyperlinked material”.
Murray argued that, irrespective of whether New Zealand followed the approach in Crookes or Visscher, Murray’s actions did not give rise to sufficient endorsement or adoption so as to found liability.
The Judge resolved the issue was a question of fact for trial:
The possibility that a hyperlinker could be liable for the “promotion” of the hyperlinked material, allows for argument that Mr Murray’s actions in promoting and linking to the page amount to publication of its contents. (See -[64.)
Single- or multiple-publication rule?
Under s 15 of the Limitation Act 2010, defamation claims in New Zealand must be brought within 2 years of publication. The exception to this is where the plaintiff can establish a “late knowledge date” – rather self-explanatory – for which the limitation period becomes 2 years from the established late-knowledge date. (An absolute bar on proceedings – or “longstop period” – applies once 15 years has elapsed from the date of publication.)
Under this head, Courtney J considered when, for the purposes of limitation, time starts running in respect of statements published online – having regard to New Zealand’s extant multiple-publication rule.
The defendants advanced an application of the single-publication rule – i.e. that publication occurs on the day the material is first published on the Internet and no later. Her Honour acknowledged the “attraction” of such a proposition, and noted the single-publication rule applied overseas – in England, for instance. However, in view of the Supreme Court’s previous endorsement of the multiple-publication rule – albeit in a contempt-of-court case – Courtney J held it was at least arguable the multiple-publication rule continues to apply. Accordingly, her Honour said she “must assume” the impugned material continued to be published right up until the Facebook page was taken down. The net effect was that certain publications alleged to be time-barred were permitted to remain. (See -.)
Pleadings in respect of different bases of liability
The Judge held it was unacceptable for Wishart to plead, under a single cause of action, multiple bases of alleged liability – for instance, DDNZ’s vicarious liability for Murray’s statements (as his employer) and its direct liability for Murray’s statements (through endorsement/adoption of his statements). Each base of liability, and the facts on which each was founded, was to be pleaded separately. (See -.)
Exemplary damages upon vicarious liability
Courtney J was satisfied there was a tenable claim DDNZ was vicariously liable for Murray’s publications. However, she determined that exemplary damages were, as a matter of law, unavailable upon such liability. (See -.)
This proceeding continues to emit a valuable repository of online-defamation-law principles – and hopefully assistance to practitioners tasked with pleading or responding to claims arising from forum posts, news-website comments, Facebook threads and the like.
Courtney J has ordered a stay of the proceedings until Wishart has filed a compliant fifth amended statement of claim. He has until 31 March 2016 to do so. Assuming the case proceeds, it will be interesting particularly to see how the various bases of the defendants’ alleged liability are determined.
Click here to download the judgment.
Photo Credit – International Press Institute