The High Court has recently held that a Facebook member was prima facie liable for the defamatory postings made on his page by third parties. In Wishart v Murray  NZHC 540 (19 March 2013), which was an application for strike-out of the proceedings brought by Wishart, the Court had to decide whether Murray, as the creator the page called ‘Boycott the Macsyna King Book’, was a publisher of statements made on third parties on the page. Counsel for Murray argued that he could not be considered to be the publisher as he had no actual knowledge of the statements. Justice Courtney rejected this and held that a host of a Facebook page, such as Murray, will be regarded as a publisher of defamatory statements made in comments by anonymous users in two circumstances: • If they know of the defamatory statement and fail to remove it within a reasonable time in circumstances that give rise to an inference they are taking responsibility for it; or • 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. In my view, this is entirely what the Defamation Act 1992 was designed to do. Accordingly, those who create social media pages, especially those that push topical or emotional issues that might lead to defamatory statements being made, need to be particularly mindful of what they are creating when they set up a page and then be mindful and responsive in monitoring it. If they fail to remove defamatory statements within a reasonable time, they may be considered responsible for them and subsequently be found accountable to those whose reputation has suffered as a result. Watch this space for the substantive decision!
By Chris Patterson