Murray v Wishart 2014

In this case the Defendant had created a Facebook page inviting users to boycott a book which had been co-written by the Claimant with a person called Macsyna King, the mother of twins who had died. The purpose of the Facebook page was to air comments and discuss the new release of the book. The twins father had submitted, during a trial, that the twin’s mother, Macsyna King, had fatally injured the children but a Coroner ruled at a later date that they had died whilst in the care only of the father.

The accusation made by the father, however, remained in the public consciousness and thus the new book attracted attention to the Facebook page set up to discuss it. What was at issue here was the Defendant’s role of being the host of the Facebook page and also being the person who created it. Was he the publisher of the comments made by the third parties who wrote on his Facebook page. He contended that, for him to be liable for any comment, he should have knowledge of the defamatory statement made. The Defamation Act 1992 holds a person liable as publisher if that person makes contribution to or participates in, the publication of the defamatory statement of some other person.

The case was held in the New Zealand Court of Appeal where the Judges, without exception, ruled that an owner of a Facebook page, which others had commented on, would not be held liable for the comments made by the other people making comments on the basis that he should have known that they were defamatory. Further, at the same time, not knowing what the actual comments said.

The ruling by the Judges meant that Facebook page hosts will only be liable for defamation of third party comments in circumstances where they knew about the comments and then did not remove them in a reasonable length of time which then inferred that they accepted the comments made by that third party.

The judgment gave rise as to how the courts should view the statements made and look to see the circumstances of each, as follows:

  1. Is the publisher of that page a news vendor where it would be supposed that he had already accepted liability for those publications to be sold ? or
  2. Is it subject to the defence of innocent dissemination, which principle emanates from the case of Emmens v Pottle 1885 where the Defendant had to prove that he did not know the matter was defamatory, was likely to include defamatory material and his not knowing did not mean he had been negligent? or
  3. Was he the owner of a noticeboard seen by all who only became aware of the publication when as the owner he was informed that a defamatory notice had been posted?

However, in the Defendant’s case he had stopped the Claimant and his followers from accessing the Facebook page which gave rise to whether he could argue that he had no knowledge as to whether any future material on the page would be defamatory. He also said that he had informed the Claimant about the defamatory postings.

The Judges found that there could be no exception made for Facebook hosts and therefore the Defendant was the publisher of the statements on his page. He could have used the innocent dissemination defence but, in light of his behaviour toward the Claimant, this would be difficult for him to substantiate.

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