Recently, the Court of Appeal of New Zealand decided Christopher Robert Murray And Ors v Ian Wishart and ruled that a third party publisher - the owner of a Facebook page that contained comments by others - was not liable for defamation without actual knowledge, overturning a previous 'ought to have known' test.
Mr. Wishart is the author of a book called Breaking Silence, about a woman named Macsyna King, whose baby twins died in unclear circumstances from non-accidental injuries. Ms. King was implicated in the murder, although only the father of the twins was charged with their murder but acquitted. When Mr. Murray learned of the impending publication the book, he established a Facebook page called “Boycott the Macsyna King book," where several comments were posted by numerous people other than Mr. Murray. Some of those comments were later found defamatory.
The Court of Appeal had to review an "ought to have known" standard, which was adopted by the court of first instance. In finding Mr. Murray liable, the previous ruling applied the following test, distinguishing between an "actual knowledge" test and a "ought to know" test:
[t]hose who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is if they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference that they are taking responsibility for it. A request by the person affected is not necessary. The second is where they do not know of the defamatory posting but ought, in the circumstances, to know that postings are being made that are likely to be defamatory.
Unanimously, the judges of the Court of Appeal reversed the previous decision and endorsed the "actual knowledge" test. In particular, the Court noted that
the ought to know test makes the Facebook page host liable on a strict liability basis, solely on the basis of the existence of a defamatory comment. Once the comment exists, he or she cannot do anything to avoid being treated as its publisher. [ . . . ] It can be argued that the ought to know test is not entirely a strict liability one, because it applies only where the circumstances are such that the host should reasonably anticipate the posting of a defamatory statement. That is akin to making the host liable for the defamatory comment because he or she has been negligent in not taking steps to prevent the defamatory comment being made. Imposing liability for damage to someone’s reputation on the basis of negligence rather than an intentional act is contrary to the well-understood nature of the tort of defamation as an intentional tort.
Therefore, the Court ruled that a third party publisher was not liable for comments by other people simply because he "ought to have known" that they were defamatory. Instead, owners of a Facebook page would only be liable for posters' defamatory comments, if (1) they had actual knowledge that those comments were on the Facebook page and (2) failed to remove them within a reasonable time.
The ruling included also a roadmap for applying this test to other content hosts by reviewing a large number of national and international authorities. However, a common principle to be applied to all content providers seems hard to distil as the role of online entities is somewhat fact sensitive. Reference to analogies in non-internet circumstances may be a helpful tool for courts to apply, although analogy may not be appropriate in all cases. In this respect, the Court noted:
[o]ur analysis of the authorities shows how sensitive the outcome can be to the particular circumstances of the publication. The fact that many of the authorities relate to publication in one form or another on the internet does not provide any form of common theme, because of the different roles taken by the alleged publisher in each case. [. . . ] Many of the decisions show an effort by the relevant Court to reach a conclusion by reference to an analogy in a non-internet circumstance. We agree that is a helpful form of reasoning, but it must be acknowledged that the analogies are only analogies, and there is room for debate about their appropriateness in particular cases.
The full text of the decision is available here.