When will the host of a Facebook page become a publisher of comments by third parties for the purposes of a defamation action? This was the issue which confronted Courtney J in the case of Wishart v Murray.( HC AK CIV-2012-404-001701 19 March 2013)
The background to the case was this. In a high profile case a young man by the name of Chris Kahui was charged with the murder of his twin baby children. He was acquitted after a highly publicised trial. During the trial he suggested that the babies’ mother, Macsyna King, had inflicted the fatal injuries. Although a coroner later found that the twins had died while in Mr Kahui’s sole care, this suggestion retained some currency in the public arena.
The plaintiff, Ian Wishart, an investigative journalist and writer, wrote a book about the case entitled Breaking Silence. Ms King collaborated in the writing. As publication of the book became imminent the first defendant, Christopher Murray, established a Facebook page called “Boycott the Macsyna King Book”. He posted comments on Twitter and on the Facebook page criticising Mr Wishart and Ms King.
Mr Wishart commenced defamation proceedings against Mr and Mrs Murray. One of the causes of action related to comments made by third parties that were posted on the Facebook page. The cause of action could only succeed if (among other things) Mr Murray was found to be a publisher of those postings. Mr Murray maintained that, as a mere host of a Facebook page, he could not, at law, be the publisher of statements that he did not author. Mr. Murray applied to strike out this cause of action (along with others with which this post is not concerned).
The issues to be determined were these:
1. What is the correct legal test for determining whether the host of a Facebook page is the publisher of statements posted on it by other users.
2. Whether, on the facts as pleaded and the non-contentious evidence that was before the Court Mr Wishart had a tenable case in respect of Mr Murray’s ability as the publisher of comments posted by others on the Facebook page.
The Role Played by Mr Murray
The Court first considered Mr. Murray’s role and the creation of the Facebook page. Mr. Murray outlined the position in his affidavit in this way:
4. While I created the Facebook page, the site is not mine as such. Facebook offers users the ability to create pages, but retains ownership of the service base and ultimate control over the contents. Content on these pages is published using Facebook processes.
5. Comments can be posted on Facebook pages by other Facebook users. The creator of any individual Facebook page is unable to exercise meaningful editorial control over comments before they are posted. That is, there is no function on Facebook by which a site creator can vet comments before they are published.
6. It is correct, however, that a creator of a Facebook page has some control over comments published on the page as he/she can, once aware of comments published, retrospectively remove individual comments and block specific Facebook users to prevent them from publishing further comments.
7. It should be noted, howeve, that a block on a user functions only in respect of the relevant Facebook account. It cannot prevent the relevant individual from establishing a new Facebook account and post further comments.
8. Contrary to the plaintiff’s allegations I did at no point encourage, invite or consent to, abusive, threatening or defamatory comments being posted on the site and I did take steps to moderate any such comments that I became aware of.
9. The information section included my Twitter account to allow people to contact me. Once it became apparent that some comments posted were abusive I posted comments on the site myself asking that viewers report such comments to me via the Twitter account so that I could block the relevant users. I received around ten reports that way and acted on all of them.
10. I also regularly visited the site, read comments published on it and blocked users who posted abusive or clearly defamatory comments. All in all, I banned 50 users from the page so as to moderate abusive comments.
11. The site attracted some 250,000 in total, which was far more than I ever expected. As a result, it was increasingly difficult to review them all and remove all potentially abusive or defamatory comments. Facebook also uses an auto-update function. This means that the site is constantly updated with new comments while you view it, which refreshes the screen in a way that makes it very time consuming and difficult to keep track of existing comments when they are so frequently being supplemented. Given the number of comments and the speed with which they were posted, this made it slow and difficult to review historic comments and block relevant users.
12. I finally took the site off line on or around 13 August 2011
In a further affidavit Mr. Murray acknowledged that he had blocked Mr. Wishart’s ability to post comments on the site and explained it in this way:
However the purpose of doing this was not to prevent Mr Wishart from telling his side of the story. His comments, and those of some of his supporters generated a significant number of responses, including some abusive and inappropriate comments. Once it became apparent to me that this occurred I blocked Mr Wishart and a small number of his vocal supporters as a way to discourage misuse of the page. To keep the debate as balanced as possible I posted links to pages setting out Mr Wishart’s version of events (see for example p36 of exhibit A5 to Mr Wishart’s affidavit in support of his statement of claim dated 28 March 2012).
At para 24 of his 30 May 2012 affidavit Mr Wishart alleges that he alerted me to alleged inaccuracies on the Facebook page at a time when I had fewer than 200 people registered on the page. I am uncertain as to what Mr Wishart means by “registered”. I do, however, have no recollection of Mr Wishart contacting me about any inaccuracies. In any event, I do not believe that any statement of which I am the author is defamatory of Mr Wishart. I also blocked any users who posted abusive or otherwise inappropriate comments as soon as possible after becoming aware of such comments having been posted.
What is the Test to Determine Whether the Facebook Host is Publisher of Other Users” Statements
The Judge stated the general principle that a person who participates in or contributes to the publication of another person’s defamatory statement is, prima facie, liable as a publisher, subject to the defence of innocent dissemination and which was stated in the case of Emmens v Pottle (1885) 16 QB 170. However in that case – which dealt with the sale of a newspaper that contained libellous material – the defendants did not know that the paper contained a libel. They were unaware of the content of the medium that they were disseminating. Lord Esher in Emmens made the following remark which Courtney J considered significant.
I am not prepared to say that it would be sufficient for them to show that they did not know of the particular libel … Taking the view of the jury to be right, that the defendants did not know that the paper was likely to contain a libel, and what’s more, that they ought not to have known it, having used reasonable care – the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel.
In this statement the issue becomes clear. Publication is one thing and innocent dissemination may be entirely another. But can publication take place without knowledge of the content OR of that fact that it has been made available? Given that defamation is a strict liability tort the answer would appear plain. But the new technology introduces a factual matrix which may differ from those conceived in the print paradigm , and which require examination. It is for this reason that Courtney J focussed upon Mr Murray’s statements about how the Facebook page worked.
In essence the Judge reasoned by analogy from earlier cases. After an extensive review and discussion of relevant authority, Courtney J considered that the notice board analogy is apt in considering publication via Facebook. She found that the host of a Facebook page establishes the digital equivalent of a notice board and has the power to control content by deleting postings and to block users.
She held that hosts of such pages will be regarded as publishers of postings made by anonymous users if,
1. 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), and
2. 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.
Thus the contention that Murray was the publisher of the defamatory statements was tenable.
Is this a different outcome to the well established distinction that arose between moderated and unmoderated bulletin boards in the classic cases of Stratton Oakmount Inc v Prodigy Services Co (1995 WL 323710 (NY Sup Ct 1995)) and Cubby Inc v Compuserve Inc (776 F Supp 135 (SD NY 1991))? In Cubby the ISP Compuserve provided an online information service which allowed subscribers access to electronic bulletin boards, interactive online conferences and topical databases.
Management of these fora was contracted out to a third party which had the power to review, delete, edit and generally control content in accordance with editorial standards established by the defendant. The manager had, in turn, engaged an independent contractor to provide a daily newsletter.
Compuserve successfully resisted a defamation action based on statements made in the newsletter on the basis that it had no knowledge of the statements and was a distributor only, rather than a publisher. The Court accepted that the defendant had no greater editorial control over what was published in the newsletter than any public library or bookstore and was the “functional equivalent” of a traditional news vendor.
Courtney J, in considering Cubby, observed that the holding was inconsistent with Emmens v Pottle which held that a library or a bookstore could be a publisher, but could have recourse to the innocent dissemination defence. Another factor was that the reasoning on Cubby was based on the constitutional guarantees of freedom of speech and the press as precluding strict liability for publication. Courtney J concluded:
This decision does not, therefore, assist in identifying a test that might fit into the existing parameters of UK and New Zealand common law.
Courtney J also discussed Stratton Oakmount. In that case the factual matrix differed from that of Cubby in an important respect in that the defendant Prodigy moderated and exercised a different extent of control over the content that appeared on its bulletin boards.
The facts were that Prodigy, the defendant, maintained a bulletin board service and had a company policy that the general content of the bulletin board would reflect family values. It developed content guidelines and removed material that it considered unacceptable. These controls were found to put Prodigy in a significantly different situation from the defendant in Cubby and resulted in Prodigy being a publisher. Interestingly, the issue of knowledge does not seem to have been a factor in the decision and the case seems to have proceeded on the basis that Prodigy did not have actual knowledge of the postings that were the subject of the action. It was the decision to assume a level of editorial control that was critical. The Court in Stratton Oakmount observed:
By actively utilising technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and “bad taste”, for example, PRODIGY is clearly making decisions as to content … And such decisions constitute editorial control. If such control is not complete and is enforced both as early as the notes arrive and as late as the complaint is made, does not minimise or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role in determining what is proper for its members to post and read on its bulletin boards. Based on the foregoing, this Court is compelled to conclude that for the purposes of Plaintiffs’ claims in this action, PRODIGY is a publisher rather than a distributor …
It is PRODIGY’s own policies, technology and staffing decisions which have altered the scenario and mandated the finding that it is a publisher. PRODIGY’s conscious choice, to gain the benefits of editorial control, has opened it up to a greater liability than CompuServe and other computer networks that make no such choice.
However, a consequence of this approach was that it would be safer for ISP’s or content providers to avoid any suggestion of editoral control. The Court in Stratton Oakmount rejected this as a serious risk on the basis that it “incorrectly presumes that the market will refuse to compensate a network for its increased control and the resulting increased exposure”. Nevertheless, the difficulties faced by website hosts controlling huge volumes of postings, led to legislation in the US (Section 230 Communications Decency Act 1996) which protects interactive computer services in relation to the publication of information by third parties.
Thus the Courts in the United States had adopted an “editorial control” test, akin to that exercised by newspaper proprietors. A different approach was suggested by Cynthia Counts and Amanda Martin in an article entitled “Libel in Cyberspace: A framework for addressing liability in jurisdiction issues in this new frontier” (1996) 50 Alb L. Review 1083. They referred to two pre-Internet cases from the United States – Heller v Bianco (111 Cap App 2d 424 (1952)) and Tacket v General Motors (836 F 2d 1042 (7th Cir 1987)) These have been referred to as “graffiti cases” arising from their facts.
In Heller the Court of Appeal of California held that the proprietors of a tavern were liable for the publication of a defamatory statement inscribed on the men’s bathroom wall after the bar-tender was told of it and failed to remove it. The knowledge that was regarded as sufficient was the knowledge of the barman, attributed to the proprietors. However, the issue of liability was determined upon the basis of a breach of a duty. This approach is not permitted in New Zealand (see Bell-Booth Group v AG  3 NZLR 148)
Tacket concerned a sign affixed outside a motor vehicle plant. The Judge cited from both Hellar and distinguished it on the basis of the “steep discount” that readers tend to apply to statements on restroom walls and the cost of frequent re-paintings. He went on to say:
A person is responsible f or statements he makes or adopts, so the question is whether a reader may infer adoption from the presence of the statement. That inference may be unreasonable for a bathroom wall or the interior of a subway car in New York City but appropriate for the interior walls of a manufacturing plant over which supervisory personnel exercise greater supervision and control. The costs of vigilance are small (most will be incurred anyway) and the benefits potentially large (because employees may attribute the statements to the employer more readily than patrons attribute graffiti to barkeeps).
Given the actual knowledge on the part of the defendants it seems unlikely that liability based on assumption of responsibility could have been established without it.
The approach adopted by Counts and Martin in their Law Review article was that applying these cases by analogy, knowledge of defamatory postings on a website would be a pre-requisite for liability as a publisher. They said:
In Hellar and Tacket courts considered knowledge by the defendants and the defendants’ allowance of the statement to remain, to be critical. In Scott the Court added the requirement that for imposition of liability to be proper, the defendant must somehow invite the public to read the allegedly libellous statement.
Applying these principles to cyberspace publishing would result in potential liability if the sysop [systems operator] were aware of an allegedly libellous posting and undertook some action to ratify the communication. Conversely, these principles show that a sysop’s cyberspace activity would not result in potential liability if he does not know of the posting or did not take any action to ratify the communication.
In its 1999 report “Electronic Commerce Part 2”. The Law Commission recommended a test that required actual knowledge based on the so-called “graffiti principle” derived from a line of US cases and ejected as unfair and not feasible an alternative test based on the extent of editorial control. It was significantly influenced by the risks that flowed from the approach taken in Stratton Oakmont v Prodigy and considered that the “degree of editorial control approach” was undesirable because it would discourage screening for offensive material and such a test was not sufficiently precise to provide a predictable criteria on which ISPs could base their practices.
However, what has happened in England is that the law has developed to a position consistent with the approach in Emmens v Pottle, although that development has not been without controversy.
The line of cases referred to by Courtney J starts with the well-known case of Godfrey v Demon Internet  QB 201 and Bunt v Tilley  EWHC 407 (QB), both of which concern the liability of ISPs. What should be observed is that in fact Bunt v Tilley mitigates the somewhat rigorous position adopted by Morland J in Godfrey. Secondly, as Courtney J observed, the position of an ISP is quite different from that of a Facebook page host. However she considered the decisions are significant in the development of the law as it stands in relation to website hosts. It is encouraging to see the recognition by the Judge of the difference between the various types of activity on the Internet, rather than attempt to consider the matter as an overarching set of principles applicable to the Internet in general.
In Godfrey the defendant internet service provider offered a “Usenet” facility which allowed subscribers to access bulletin boards from the internet service provider’s news server. Demon was notified of a defamatory posting and asked to remove it. It could have done so immediately but did not. The posting remained on the news server for a further 10 days or so until it expired.
Moreland J rejected Demon’s argument that it was merely the owner of an electronic device through which postings were transmitted and not to be regarded as a publisher. He allowed the application to strike out the defence that the defendant was not a publisher. The claim only applied to that period of time after notice had been given and the Judge noted that the defendant had an editorial function:
I do not accept [the] argument that the defendant was merely the owner of an electronic device through which postings were transmitted. The defendants chose to store “soc.culture.thai” postings within its computers. Such postings could be accessed on that news group. The defendant couild obliterate and indeed did so about a fortnight after the receipt.
Then he went on to make a more generalised statement about the common law position regarding publication, suggesting that Demon would have been a publisher without knowledge of the defamatory statement:
At common law liability for the publication of defamatory material was strict. There was still publication if the publisher was ignorant of the defamatory material within the document. Once publication was established the publisher was guilty of publishing the libel unless he could establish, and the onus was upon him, that he was an innocent disseminator.
That general comment caused a considerable amount of concern within the internet community, although it should be observed that Godfrey was a case involving an interlocutory application to strike out a defence and did not address the substance of the claim (which was later settled). It dealt with a preliminary albeit necessary element of the tort of defamation.
The decision in Bunt v Tilley took a different approach, perhaps bringing into play a little progress and an understanding of the way in which information flows take place on the Internet. Bunt v Tilley was not concerned with material that was hosted by an ISP but with content of which the ISP was a carrier and in respect of which the ISP played a passive role. Eady J made the observation, referring to Emmens v Pottle :
….for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.
I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence … There a defence is needed because the person is regarded as having “published”. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers; thus they do not need a defence.
Eady J took this approach forward in two further cases that he decided. In Metropolitan International Schools Ltd v Designtechnica Corporation ( EWHC 1765 (QB),  1 WLR 1743) he considered the cases of Google’s liability for the automatic function that was provided by its search engine of providing “snippets” from other websites in response to search enquiries by users. Eady J held Google’s function as a search engine, with no human input into the selection of snippets shown, meant that it could not be regarded as a publisher of them. The automatic process together with the lack of human or editorial control seemed determinative. But the judge went further. He considered that, even after notification of defamatory material, Google was still not a publisher because of its lack of control over future searches that might continue to throw up offending material.
This approach was continued in the case of Tamiz v Google  EWHC 449(QB) although this case did not deal with search results but an entirely different utility offered by Google that it made available on the Internet. The service offered was called Blogger. It allowed any Internet user to create an independent blog. Courtney J observed that it was similar to the service offered by Facebook by which people could create and control their own Facebook page. As a starting point I agree with the Judge, but is is there that the similarity end, for much depends upon the way in which a user configures a blog or a Facebook page. Furthermore, there is a difference between a service provider and the host of a Facebook page. The reality of the matter is that the real host of the page is Facebook and the creator of the Facebook page uses Facebook’s hosting facilities.
In Tamiz, Eady J held that in its role as a platform provider Google was entirely passive. It had a policy of not removing offending material even when notified, but merely passing the complaint onto the blogger concerned. Although Eady J made no reference to the graffiti principle established in the US, he nevertheless likened Google’s position to that of the owner of a wall that had been graffitied in that, although the owner could have it painted over, its failure to do so did not necessarily make it a publisher.
Tamiz went on appeal to the English Court of Appeal and the developing principles in the line of cases developed by Eady J mitigating the strictness of defamation law for Internet hosts hit a “speed bump”. The Court held that, although Eady J’s conclusion in Bunt v Tilley that an ISP was not a publisher was correct in the circumstances of that case, Google could not be regarded as a purely passive communicator of information in the case of Tamiz.
The Court of Appeal observed as follows:
 … I respectfully differ from Eady J’s view that the present case is so closely analogous to Bunt v Tilley as to call for the same conclusion. In my view the Judge was wrong to regard Google Inc’s role in respect of Blogger blogs as a purely passive one and to attach the significance he did to the absence of any positive steps by Google in relation to continued publication of the comments in issue.
 By the Blogger service Google Inc provides a platform for blogs, together with the design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its choice and it can readily remove or block access to any blog that does not comply with those terms … As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn.
 By the provision of that service Google Inc plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge or, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article, nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed …
 I am also very doubtful about the argument that Google Inc’s role as that of a secondary publisher, facilitating publication in a manner analogous to a distributor. In any event it seems to me that such an argument can get nowhere in relation to the period prior to notification of the complaint. There is a long established line of authority that a person involved only in dissemination is not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory: Emmens v Pottle (1885) 16 QBD 354, 357-358; Vizetelli v Muddie’s Select Library Ltd  2 QB 170, 177-180; Bottomley v S W Woolworth & Co Ltd (1932) 48 TLR 521. There are differences in the reasoning in support of that conclusion but the conclusion itself is clear enough. The principle operated in Bottomley to absolve Woolworth from liability for publication of a defamatory attack in a consignment of remaindered American magazines that it distributed; the company did not check every magazine for defamatory content, there was nothing in the nature of the individual magazine that should have led it to suppose that the magazine contained a libel and it had not been negligent in failing to carry out a periodical examination of specimen magazines. Since it cannot be said that Google Inc either knew or ought reasonably to have known of the defamatory comments prior to notification of the appellant’s complaint, that line of authority tells against viewing Google Inc as a secondaary publisher prior to such notification. Moreover, even if it wer to be so regarded, it would have an unassailable defence during that period under s 1 of the 1996 Act considered below
The Court then referred to the decision of Judge Parkes QC in Davison v Habeeb  EWHC 3031 (QB) In that case Google was sued in respect of defamatory statements posted on a blog hosted by Google itself. The Judge distinguished Bunt v Tilley, although the distinction would be obvious because Google, in posting statements on a blog would fill the role of content provider, whereas Bunt v Tilley was concerned not with a content provider but and ISP – a content carrier, demonstrating the importance of distinguishing between the nature of the services provided and the protocols used on the Internet. That point was recognised by Judge Parkes QC
Blogger.com, by contrast, is not simply a facilitator, or at least not in the same way as the ISPs. It might be seen as analogous to a giant noticeboard which is in the fifth defendant’s control, in the sense that the fifth defendant provides the noticeboard for users to post their notices on, and it can take the notices down (like the club secretary in Byrne v Deane) if they are pointed out to it. However, pending notification it cannot have the slightest familiarity with the notices posted, because the noticeboard contains such a vast and constantly growing volume of material. On that analogy, it ought not to be viewed as a publisher until (at the earliest) it has been notified that it is carrying defamatory material so that, by not taking it down, it can fairly be taken to have consented to and participated in publication by the primary publisher. The alternative is to say that, like in Demon Internet in the Godfrey case, it chose to host material which turned out to be defamatory and which it was open to anyone to download so that at common law it was prima facie liable for publication of the material, subject to proof that it lacked the necessary mental state.
Perhaps the distinction demonstrates the fact that not all of the services offered by Google may comfortably fall under a generalised “Google” rule. However, Davison is helpful because it addresses the nature of blog publication, and the circumstances under which liability may attach.
In Tamiz, Google could not be considered a passive provider. Richards LJ picked up on Judge Parkes QC’s approach in Davison, observing as follows:
 … I have to say that I find the noticeboard analogy far more apposite and useful than the graffiti analogy. The provision of a platform for the blogs is equivalent to the provision of a noticeboard; and Google Inc goes further than this by providing tools to help a blogger design the layout of his part of the noticeboard and by providing a service that enables a blogger to display advertisements alongside the notices on his part of the noticeboard. Most importantly, it makes the noticeboard available to bloggers on terms of its own choice and it can readily remove or block access to any notice that does not comply with those terms.
 … Those features bring the case in my view within the scope of the reasoning in Byrne v Deane. Thus, if Google Inc allows defamatory material to remain on a Bloggerblog after it has been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for the continued presence of that material on the blog and thereby to have become a publisher of the material. Mr White QC submitted that the vast difference in scale between the Blogger set-up and the small club-room in Byrne v Deane makes such an inference unrealistic and that nobody would view a comment on a blog as something with which Google Inc had associated itself or for which it had made itself responsible by taking no action to remove it after notification of a complaint. Those are certainly matters fore argument but they are not decisive in Google Inc’s favour at this stage of proceedings where we are concerned only with whether the appellant has an arguable case against it as a publisher of the comment in issue.
Thus the creation of a blog on the Blogger platform is not a passive activity, according to Courtney J. As far as the provider of content is concerned that is clear. According to Courtney J, although Tamiz dealt with Google’s liability it is implicit that parties who actually create and control the content of the blogs are also to be regarded as publishers of comments posted on them once they know or ought to know of them. Courtney J also made reference to the Australian case of Trkulja v Google  VSC 533 where it was held that the proposition that an ISP cannot be a publisher was rejected because it would cut across the principles that have formed the basis for liability in the news agent/library type cases, and the cases in which the failure by a person with the power to remove defamatory material gives rise to an inference of consent to the publication.
Trkulja dealt with aspects of the Google search engine. One aspect dealt with the provision of images as a search result and some unflattering images that suggested that Mr. Trkulja had associations with the Melbourne criminal fraternity. The other aspect dealt with search results that led to further information suggesting criminal associations on the part of Mr Trkulja. Now the reality behind Trkulja is that it deals with an aspect of the principal service offered by Google and that is its search engine. In providing this service Google is not an ISP. In fact, Google in fulfilling its role as a search engine a form of content provider, although direct human intervention with the results of a search is not present. Search results derive from the algorithms created and employed by the Google programmers. Beach J dealt with the publication aspect of a Google search as follows:
In my view, it was open to the jury to find the facts in this proceeding in such a way as to entitle the jury to conclude that Google Inc was a publisher even before it had any notice from anybody acting on behalf of the plaintiff. The jury were entitled to conclude that Google Inc intended to publish the material that its automated systems produced, because that was what they were designed to do upon a search request being typed into one of Google Inc’s search products. In that sense, Google Inc is like the newsagent that sells a newspaper containing a defamatory article. While there might be no specific intention to publish defamatory material, there is a relevant intention by the newsagent to publish the newspaper for the purposes of the law of defamation.
What then about knowledge? Does the “publication test” require actual knowledge of the defamatory statement? The cases discussed so far suggest otherwise and certainly such a proposition would be inconsistent with Emmens v Pottle. The “notice board” cases assisted Courtney J in her approach.
The starting point is the case of Byrne v Deane ( 1 KB 818 (CA)). This case concerned an anonymous notice that was posted on the noticeboard of a gold club. The club rules prohibited notices being posted without the secretary’s consent. The defendants had seen the notice but did not remove it. The Court of Appeal held that those with control over the noticeboard were publishers of material posted on it if it could be inferred that they had taken responsibility for it. They had the power to remove the notice and failed to do so.
Greene LJ observed:
It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me to be this: having regard to all of the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it has been put?
Byrne v Deane was followed by the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council & Anor. ((1991) Aust Torts Reports 69). This case concerned defamatory posters glued to bus shelters under the defendants’ control. The defendant had actual knowledge of the posters and had been requested to remove them. Courtney J considered that Urbanchich held that there should be proof of facts from which the fact-finder could infer that the defendant had taken responsibility for, or ratified, the continued publication of the statements. The defendant in Urbanchich did in fact have actual knowledge and was asked to remove the material but treating these facts as prerequisites for the defendant to be treated as a publisher does not accurately reflect the reasons for the decision.
Byrne and Urbancich were followed in New Zealand in Sadiq v Baycorp (New Zealand) Ltd. (HC Auckland CIV-2007-404-6421, 31 March 2008). The plaintiff complained of defamatory statements regarding his creditworthiness on a debt collector’s website. The material had been placed on the website by the previous owner of the website. Doogue AJ considered that the defendant in that case had to know of the material for the inference to be drawn that it had taken responsibility. He made the following comment about publication:
The key to whether Byrne can be extrapolated to this case, essentially depends on whether inferences can possibly be drawn that the first defendant possessed knowledge of the defamatory statement and the ability to bring about its cessation, leading to a final inference that failure to do so indicates that the first defendant in some way allies itself with the statement …
… it would not seem to be logically possible to conclude that a defendant was complicit in the publication, in the absence of knowledge that the publication had actually occurred. Where the facts are simple – the defendants could see with their own eyes that the offending notice has been attached to the wall as in Byrne – the inference may readily arise. The position, however, may be different in a case where, as here, the defendants’ actual knowledge that there had been a publication is moot.
Publication in this case would have occurred when subscribers to the website accessed Mr Sadiq’s file … It is not sufficient for the plaintiff to invoke a vague concept such as that the defendant took over the debt collection files of its predecessor, which predecessor had been responsible for actual publication. There would need to be evidence that some human agent of the defendant adverted to the presence of the statement on the website and nonetheless took no steps for its removal.
This seems to equate at least with an awareness of content existence athough not necessarily the content of the content (if I may put it that way) In resolving the authorities Courtney J said:
[L]imiting the circumstances in which a defendant is to be viewed as a publisher of other’s statements to those in which the defendant had actual knowledge is not consistent with Emmens v Pottle; under the general principle I respectfully think that the defendant in Sadiq ought to have been viewed, prima facie, as a publisher, with the real issue being whether it either knew or ought to have known that the publication contained a defamatory statement for the purposes of the innocent dissemination defence.
Courtney J’s Conclusion
Courtney J considered that the analogy of the notice board applied to considering whether the host of a Facebook page is a publisher. The host of such a page may establish what is essentially a noticeboard which may be public and to which anyone may post comments or which may be private and restricted to posting from a specified group. In either case the host may control content and delete postings and may also block users. Furthermore she held that those who host Facebook pages are not passive instruments (as was the case in Bunt v Tilley which ,as noted, dealt not with content providers but content carriers) or mere conduits of content on the page. She held that there are two circumstances where they will be publishers of content.
1.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.
2.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.
So was it possible to argue that Mr Murray was a publisher of the anonymous comments. The Judge’s starting point was Mr Murray’s affidavit. He couldn’t control the posting of comments (other than blocking access to individuals) but he had considerable control over whether or not they remained. In his affidavit it was clear that he not only could, but did take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate. He also blocked particular individuals whose views he considered unacceptable. Mr Murray could not, on the available evidence, be viewed as a passive instrument. The auto-update facility used by Facebook presented Mr Murray with some problems but it did not prevent him from culling abuse or inappropriate postings – it only slowed down the process.
The Judge found two other significant aspects. The first was that Mr Murray blocked access to the page by Mr Wishart and his supporters which had the effect of making it difficult for Mr Wishart to identify defamatory content. The second was that Mr Wishart had warned Mr Murray bout defamatory positings. ALthough this fact was in dispute it appears that there was a level of dialogue ebtween Mr Murray and Mr Wishart. Depending upon the ultimate factual finding that issue might also be relevant to whether Mr Murray should have known that defamatory postings were being made.
Thus, within the context of the strike out application, Courtney J was satisfied that the pleading that Mr Murray was a publisher of the anonymous statements was tenable.
The decision of Courtney J is important for a number of reasons.
1. In approaching the application of existing law to the new information paradigm one of the important tools of analysis is whether or not an existing rule can be applied if not directly, then by analogy. If that approach fails or provides an inconclusive outcome, one must then go behind the rule and attempt to ascertain the policy reasons for the rule in attempting to locate the problem within existing policy and the set of rules that surround it. Courtney J’s decision is a clear example of the analogy approach. She adopts a conventional legal position, disposing of the various alternative arguments or dispensing with those that do not add up. Rather than deal with the matter on the basis of authority that derives from the digital paradigm itself, she reasons by analogy, using authorities decided in the pre-digital paradigm and applies the principle accordingly. Her approach cannot be criticised. It is a near-perfect example of the way in which the common law allows for development and adaptation.
2. The second matter of importance is the way in which Courtney J reviewed the various lines of cases on publication, and importantly, her analysis of the Internet cases. This case provides a useful coverage of the various cases that have been decided in this area and synthesises the threads of principle that have developed. Although the American line of Cubby and Stratton Oakmount do not apply in New Zealand for a number of reasons, the discussion undertaken by the Judge on these and on other cases points to the reasons why. By the same token, both those cases suggest some overarching approaches and helpful tests that can be considered. The function of moderating comment is present in Wishart and plays a role.
However, the authorities sometimes cover aspects of Internet defamation rather than presenting a “bright line” rule applicable to all. For example the cases of Godfrey and Bunt v Tilley apply to ISPs who host material on their servers. There are substantial differences between an ISP – a provider of Internet services – and the individual host of a Facebook page. In that respect the Google cases seem to represent a halfway house between ISP-type providers on the one hand and services built on the Internet backbone such as those provided by Google on the other. The Trkulja case considers Google as publisher by way of an information provider – providing search results by way of human created algorithms. Given the findings in that case, one wonders whether the case of Metropolitan International Schools Ltd v Designtechnica Corporation (the snippets case) would be decided in the same way in Australia. As matters stand at present its seems to me that outcomes will differ depending upon the position occupied by a potential defendant in the Internet framework.
3. The third point is that, like other cases in this area such as Godfrey and Gutnick this was an interlocutory or procedural matter. It had to do with whether or not, given certain extant facts, it was arguable that Murray was a publisher. The case did not decide the point as a factual matter. This a significant pouint because it means that although it is more likely than not that later cases will be decided in a similar way, the developments of the law in this area must be incremental and must depend upon individual factual circumstances. The variety of circumstances that present themselves in the new communications technologies that are present means that a variety of different fact situations will need to be considered. What this case decides is that in the circumstances before the Court Mr Murray was not only a publisher of his own material – and that does not seem to be at issue – but that he was responsible for the content that was published on the Facebook page that he hosted. It was not necessary for him to know the quality of the content that was posted in the same way that the bookseller or the newspaper seller does not need to know the quality of the content in the book or newspaper, but only that there is content present. Mr Murray did go a step further and vetted the third-party content and took some of it down. Thus the issue went beyond awareness of mere content and covered quality of content.
I now want to step away from the legal analysis and looks at the nature of the Facebook page and its purposes and raison d’etre. What I argue is that by an analysis of the purpose of the technology, one arrives at the same result.
The Law Commission in its Issues Paper “News Media meets New Media” in December 2011 made the following observation:
In essence, the web has placed the tools of publishing in the hands of every individual with access to it. And, just as critically, platforms such as Facebook, which now boasts over 700 million users worldwide, allow those individual voices to connect and aggregate, creating virtual global “communities of interest”. Thanks to the disruptive nature of the web, these cyber crowds are capable of wielding levels of power and influence hitherto reserved for the mass media and those with access to traditional sources of economic and political power.
The medium in which this great proliferation of publishing is taking place possesses a set of quite unique characteristics which together help explain the game-changing nature of this technology. These include the following:
- publication on the internet is both instantaneous and global;
- once published, digital content is virtually un-erasable;
- users can publish and participate in online activities without revealing their real identities;
- there is an almost infinite capacity to store data of every kind, from the millions of “tweets” broadcast each day, to the world’s largest libraries;
- the development of powerful search engines and web browsers allows instant, and perpetual, retrieval of this data, the vast bulk of which can be accessed freely;
- the decentralised architecture of the internet and the speed and frequency with which data is saved, copied, cross-referenced, routed and re-routed around the globe makes the system highly resistant to attempts to control how users behave or to interrupt or prevent the uploading and downloading of content from the vast network of servers and computers which comprise the web.
The properties of the new communications technologies enabled by the Internet and especially by the web are directed to just that – communication. In addition the Internet has enhanced communication between users by virtue of the quality of permissionless innovation which allows entrepreneurs to “bolt on” a utility or an application and “see how it flies”. The early internet community centres such as Usenet news groups gave way, with the introduction of Web 2.0, to interactive websites and the rise of Social Media of which Facebook was one.
The very nature of social media is to enable people to communicate with one another, and although initially this was grounded in the continuation of “real-world” associations in cyberspace, the reality is that social media often allow for “cyber-relationships” to develop between people who have never met. More recently social networks have been seen as an opportunity for commercial entitles to market products and operate as another form of web presence for the purposes of brand identification, customer feedback and interaction.
Social media sites allow for a number of differing forms of communication between the host (the person who creates the site) and those who visit the site or wish to maintain an association with it (friends is the term on Facebook). The ability to post messages, make comments, post photos, mark and forward photos, for friends of friends to participate and many many more are all possible in the realm of social media.
But the most fundamental purpose of social media is the communication of information within a group. The size of the group may be very small or apocalyptically large. The purpose remains the same – the communication of information. And within the legal context that amounts to publication – making information available to a wider group. Within the context of defamation, the size of the group may be relevant for certain purposes, but this does not detract from the overall purpose of social media. In that respect, there is little difficulty in concluding that the host of a social media site or a Facebook page is a publisher of information that he or she posts there.
A host may allow others to comment or put up posts. The extent of the ability of others to post material depends upon the way in which the host has configured the site. For example, this blog is set up so that comments on posts are referred to me before I will allow them to be posted. This is a good thing because most of the comments that I receive are spam and marketing material that would clog this site and reduce its usefulness. And, of course, by allowing a comment to become public and available to readers, I am a publisher in the most absolute sense of the word. Not only do I allow the content to go onto the site, but I also exercise an editorial power, and evaluate the content of the comment.
This is part and parcel of the overall communicative purpose of a Facebook page or any other social media. Communication necessarily involved publication to the communicants, and, in the case of a Facebook page, that may be to anyone who accesses the page. If the host of the page chooses to allow comments to be posted and does not undertake editorial or moderating activity, what has happened is that he or she has provided a means by which people may comment, and in this respect Justice Courtney’s notice board analogy is apt. But even without the analogy the host, by providing the means by which others can post their views, takes on responsibility as publisher. This is not a case of a neutral carrier, as was the case of the ISP in Bunt v Tilley. The Facebook page is specifically created for a communicative purpose. The whole function to is communicate and to enable others to do so. Knowledge or awareness of the precise nature of the content is not necessary. In the case of Wishart, the Facebook page was put up for the specific purpose of protesting against the publication of Mr. Wishart’s books and to encourage people not to buy it. It was by no means a “passive” site. Its purpose was to communicate Mr. Murray’s point of view and that of others who wished to be associated with it.
Thus, if one looks at a Facebook page from a purposive perspective, one reaches the same point as did Courtney J when she used the tools of conventional legal analysis.
The issue of on-line defamation is not an easy one. The principles of defamation law – and especially libel law [including the use of seditious libel to silence or tio intimidate protest] – developed within the context of the print paradigm. For example, William Prynne faced proceedings for seditious libel arising from the publication of a book that he wrote entitled Historiomastix in 1632 and for which he was tried before Star Chamber in 1634. The history if libel has been largely associated with printed content and concepts such as publication and dissemination have developed within the properties or qualities of that particular information technology. As I have argued elsewhere, digital communications technologies have entirely different or enhanced properties or qualities. It is suggested that as the law continues to develop in this area, these properties or qualities will come into play.
In a future post I intend to revisit the area of defamation law and will deal with the issue of whether posting a link to an article containing defematory content is publication. Watch this space