User Generated Content hosts breathe sigh of relief

The New Zealand Court of Appeal has just released its much awaited decision in the Murray v Wishart defamation strikeout case.

The case concerned a campaign run by Mr and Mrs Murray, on Facebook and twitter, against the publication of a book by Mr Wishart and his publishing company concerning the death of the young Kahui twins.  Mr Wishart issued defamation proceedings against the Murrays claiming many millions of dollars in damages.  The Murrays applied to have various cause of action struck out and the appeal was in respect of the findings of the High Court judge on that application.

The case is well worth a read for anyone interested in online liability and makes some useful comments about the dangers of trying to draw analogies from pre-internet cases in the internet era.  It also, as an aside, notes that ISPs are in a very different category when it comes to liability for peoples' online behaviour and makes reference to the proposed Harmful Digital Communications Bill's safe harbour for online content hosts.

The interesting issue for current purposes though is whether the Murrays, as creators and sometime monitors of the Facebook page, were liable in respect of various third party, user generated, comments, which eventuated on the Facebook page and which were defamatory of themselves.

The High Court Judge had held that the Murrays could be liable in what she referred to as an "ought to know" test.  In other words, actual knowledge of the comments was not a prerequisite for defamation liability; they could be liable even if they did not know the comments had been posted.

The Court of Appeal's discussion of numerous relevant cases from New Zealand and overseas, thankfully, brings it to the opposite conclusion.  The "ought to know" test has no place in New Zealand defamation law.  Actual knowledge is required and the innocent dissemination defence, as defective as it may be for online content hosts, remains intact.

Image from Amazon

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