WILMAP: New Zealand

LEGISLATION

 
[(1) This Act offers possibly the widest safe harbour protection for "online content hosts".  The Act also establishes a civil regime in respect of digital communications that breach one or more of the "Communication Principles".  The Communication Principles have very low thresholds, and the civil regime is yet to come into full force.  The Act establishes criminal offences for causing serious emotional harm by posting a digital communication and for inciting, counselling or procuring another person to commit suicide – even if that other person does not commit or attempt to commit suicide in consequence of that conduct.  An online content host may be liable under these provisions if it fails to comply with the safe harbour procedure.
 
(2) This Act offers protection from all civil and criminal liability, (excepting four particular categories of liability), provided the online content host follows a notice-notice-takedown procedure in accordance with Section 24 of the Act.
 
(3) "Online content host" means the person who has control over the part of the electronic system, such as a website or an online application, on which a communication is posted and accessible by a user.  
 
(4) Although the protection from liability is wide, including tortious liability such as under defamation or breach of confidence, Section 25(4) expressly states that it does not protect the online content host from four specific types of liability: (i)  breaching criminal name suppression orders/laws (section 211 of the Criminal Procedure Act 2011); (ii)  publishing certain details about bail hearings (section 19 of the Bail Act 2000); (iii)  copyright liability or any proceedings under the Copyright Act 1994; and (4)  any enactment that expressly overrides these safe harbour provisions.]
 
 
[(1) These regulations set out the matters that must be included in a "rights owner notice" to be sent from rights owners to IPAPs under Sections 122A to 122U of the Copyright Act 1994 (see below). Each rights owner notice must identify all the alleged infringements against the rights owner's copyright that occurred at a single IP address during a single day. These regulations also prescribe the information required in infringement notices (in addition to the requirements set out in the Copyright Act); and challenge notices (which are notices that an account holder may send to a rights owner, via an IPAP, to challenge an infringement notice).
 
(2) The regulations prescribe other procedural matters including the fee an IPAP may charge a rights owner; the fee for application to the Copyright Tribunal; the method of calculating an award under section 122O of the Copyright Act; and the requirement for the Tribunal to identify the various components of the award.]
 
 
[(1) A person who infringes copyright may face both civil and criminal proceedings under the Copyright Act.  (i) The Act contains exemptions from infringement liability for transient & incidental copying that is an integral or essential part of a technological process, provided the original copy was not an infringing copy. (ii) The Act also contains exemptions from liability for Internet Services Providers (ISPs) and Internet Protocol Address Providers (IPAPs), provided they comply with specified obligations. 
 
(2) An ISP is defined as any person who does either or both of the following:  (a) offers the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; or (b) hosts material on websites or other electronic retrieval systems that can be accessed by a user (section 2).   Under Sections 92B to 92E, an ISP will not be liable for storing or caching infringing material unless the ISP:  (a) knows or has reason to believe that the material infringes copyright in the work; and (b) does not, as soon as possible after becoming aware of the infringing material, delete the material or prevent access to it (section 92C).   
 
(3) An IPAP is defined as a person that operates a business that, other than as an incidental feature of its main business activities: (a) offers the transmission, routing, and providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing; and (b) allocates IP addresses to its account holders; and (c) charges its account holders for its services; and (d) is not primarily operated to cater for transient users. 
 
(4) Sections 122A to 122U of the Act establish a process for copyright owners to follow when they consider an internet user has infringed their copyright via a file sharing network.  File-sharing networks are not illegal in themselves. However, much of the content on file-sharing networks is music, film, television, books or software that is protected by the Act.  A rights owner can make a claim against an internet account holder who the rights owner alleges has infringed copyright via file sharing.  Upon request by the rights owner, IPAPs must issue infringement notices to alleged infringers.  IPAPs also have administrative requirements under section 122T of the Act.  A failure to comply with these requirements could result in the ISP losing the protection from copyright liability under section 92B.]
 
 
[(1) The Act provides protection from defamation liability for innocent disseminators that have no actual knowledge of the defamatory content complained of (Section 21).  Any person who has published the matter that is the subject of defamation proceedings solely in the capacity of, or as the employee or agent of, a processor or a distributor, it is a defence if that person alleges and proves that:  (a) that person did not know that the matter contained the material that is alleged to be defamatory; and  (b) that person did not know that the matter was of a character likely to contain material of a defamatory nature; and  (c) that person's lack of knowledge was not due to any negligence on that person's part.
 
(2) Online content hosts may be protected from liability in defamation if they comply with the complaints provisions under the Harmful Digital Communications Act 2015 (see above).]

BILLS AND PENDING PROPOSALS

[There are currently no known new legislative proposals on the issue of intermediary liability.] 

DECISIONS

Superior Courts

Court of Appeal, Murray v Wishart [2014] 3 NZLR 722, [2014] NZCA 461, September 19, 2014
[defamation, Facebook page owner, publisher, third party statements, actual knowledge]
 
[(1) Wishart (Respondent) was the author of a book about Macsyna King. Wishart sought damages for defamation arising from comments by Murray made on a Facebook page established by Murray called "Boycott the Macsyna King book"; Murray's Twitter account (linked to Facebook page); and during radio interviews.  
 
(2) An application to strike out was made in part on the basis Murray was not the publisher of third party statements on the Facebook page. Issues included whether HC Judge was correct in finding there was an arguable case that Murray was a publisher of third party statements on the webpage.
 
(3) Court of Appeal differed from view of HC Judge in central aspect of reasoning based on Emmens v Pottle (1885) 16 QBD 354. Emmens was not authority for the proposition that a person may be found to have published a defamatory statement on the ground that they ought to have known of its existence. Existing case law was of limited assistance: it is important to focus on the particular factual situation before the Court. The host's action, allegedly amounting to infringement by the setting up of the Facebook page, was more closely analogous to the notice on wall situation in Byrne v Dean [1937] 1 KB 818. Byrne v Deane, however, was distinguished in other respects. CA expressed concerns regarding applying the "ought to know" test to the host of a Facebook page. The actual knowledge test is consistent with Sadiq v Baycorp (NZ) (see below), A v Google New Zealand Ltd (see below) and Davison v Habeeb [2011] EWHC 3031 (QB), and conformed with the approach in Byrne v Deane and Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81. The liability risk of a Facebook page host was no greater than that of an organiser of a public meeting.
 
(4) HELD:  Actual knowledge test should be the only test to determine whether a Facebook page host was a publisher - present pleading in respect of third party comments did not meet requirements of actual knowledge test - respondent permitted to re-plead claim]
 

Lower Courts

High Court, A v Google New Zealand Ltd [2012] NZHC 2352, 12 September 2012
[defamation, hosting provider, search engine, liability for search results, publisher]
 
[(1) Successful application by Google for defendant summary judgment; unsuccessful application for strike out by Google on basis Google was not a publisher; unsuccessful application for plaintiff summary judgment by A.  
 
(2) Case considered the responsibility of a search engine provider for the content of information on third party websites accessed from search results. When A's name was searched using www.google.co.nz, search results included reference to defamatory material, and a link to a third party website. A sought summary judgment on the basis that the information was clearly defamatory and that the defendant was aware of the search results. Google applied for summary judgment claiming that (i) its ultimate parent company (Google, Inc.) owned and operated the Google search engine and (ii) publication by a search engine provider of results of an enquiry did not amount to publication.  Court considered whether the defendant was a publisher of defamatory material. The test in Sadiq v Baycorp (NZ) Ltd for determining who was a publisher of defamatory material was applied (see below). The onus was on the defendant to provide enough evidence to satisfy the Court that the plaintiff's claim could not succeed.
 
(3) HELD:  The evidence supported that Google, Inc. owned and operated the Google search engine and domain name google.co.nz. The removal of references to offending webpages, following forwarding of correspondence by the defendant to Google, Inc., did not establish that the defendant had a legal ability to remove URLs from searches through the NZ domain name (applied Duffy v Google Inc [2011] SADC 178). Defendant was not liable for defamation because it had no relevant legal control over Google search engine results. The connection to Google, Inc. was not sufficient to meet the test in Sadiq. A did not have a reasonably arguable case, and it was otherwise a novel issue whether or not search engines were "publishers", therefore summary proceedings would have been inappropriate. It was unnecessary to consider the availability of defences in innocent dissemination and neutral reportage, application for strike out was dismissed on the grounds that this was a developing area of the law and it was arguable that the defendant was a publisher. Summary judgment awarded to Google against A.]
 
[defamation, hosting provider, credit reporting website, publishing, company acquisition, taken to have assumed responsability, actual knowledge, acts of promotion or ratification]
 
[(1) The plaintiff, Sadiq, issued defamation and negligence proceedings against two parties, arising out of allegedly defamatory statements published on a credit reporting website. The issue for determination was whether the first defendant, Baycorp (NZ) Ltd (Baycorp), published that material.  Baycorp sought summary judgment on the basis it had not published the material. The alleged facts said that another party, Baycorp Advantage Collection Services (New Zealand) Ltd (BACS), had posted the defamatory material on the website, prior to that company (and its website) being acquired by Baycorp.  Sadiq argued Baycorp had the means to, and should have, removed the material from the website after it had purchased BACS. 
 
(2) HELD:  The reasoning in Byrne and Urbanchich applied to online publication, and a defendant could not be taken to have assumed responsibility for defamatory material placed on its website by the previous owner of that website unless it knew about the material.  "... there must be some action that amounts to a promotion of, or ratification of, the continuing presence of the defamatory material on the website".  On the facts, summary judgment was denied, because it was arguable that Baycorp had determined whether such defamatory statements were to remain on the website or be removed. The Court applied the following test for determining liability: (ii)  Did Baycorp have knowledge of the defamatory statement? (ii)  Did Baycorp have the ability to end the publication of the defamatory statement? (iii)  Was Baycorp unwilling to end that publication thus allying itself with the defamatory statement?  If yes to all three, Baycorp would be liable.]

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CONTRIBUTORS

Peter Stubbs; Ciska de Rijk; Kent Teague
Email: Peter.Stubbs at simpsongrierson.com; Ciska.deRijk at simpsongrierson.com; Kent.Teague at simpsongrierson.com

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