A High Court decision on defamation in the context of social media has clarified the parameters of liability for hosts of third party content on the internet. As was suggested in our recent analysis of Payam Tamiz v Google Inc, the Tamiz decision has provided the signposts for dealing with issues of third party content in New Zealand.
In Wishart v Murray, Courtney J used the 'noticeboard' analogy, approved by the Court of Appeal in Tamiz for the hosts of blogging platforms, to consider the liability of Facebook page hosts as publishers of third party content.
Mr Wishart, together with Macsyna King, co-wrote Breaking the Silence a book about the case against Chris Kahui for the murder of Mr Kahui and Ms King's twin boys. Mr Murray was the creator of a Facebook page entitled Boycott the Macsyna King Book. Mr Wishart sued Mr Murray and other defendants for, among other statements, comments left by third parties on Mr Murray's Facebook page. The question for the New Zealand High Court was whether Mr Murray was the publisher of the third party content left on the Facebook page.
Applying the analysis carried out by the Court of Appeal in Tamiz to the host of a Facebook page, Courtney J held that the host of a Facebook page has the power to both delete postings and block users and could not be seen as a passive instrument or mere conduit of the information posted on the page. As such, if a host of a Facebook page knows, or should reasonably know, that defamatory material is posted on their page, they will be regarded as the publisher of that information.
The Wishart decision is consistent with the growing trend for hosts of Facebook or other social media pages to be held accountable for content posted by users. Most organisations are by now well aware of their responsibilities to monitor and remove content that might breach advertising codes of practice (though the ASA's Social Media Guidelines are limited to where the brand has 'solicited' content), but the Wishart decision reminds us that those using social media for brand promotion should be alive to their potential liability for defamation as well – which carries the potential for far greater financial and reputational damage.