Facebook Friends on Appeal – Murray v Wishart

In an earlier post I discussed the decision of Courtney J in Wishart v Murray and dealt specifically with the issue of whether the “owner” of a Facebook page was the “publisher” of defamatory comments made on that page by third parties. The case was appealed to the Court of Appeal (Murray v Wishart [2014] NZCA 461). The judges unanimously held that a third party publisher – that is the owner of the Facebook page that contains comments by others – was not liable as publisher of those comments. They rejected the suggestion liability should attach because the owner of the page “ought to have known” that there was defamatory material, even if he or she was unaware of the actual content of the comment. The Court adopted a more restrictive approach, holding that the host of a Facebook page would only be liable as a publisher if there was actual knowledge of the comments and that there was a failure to remove them in a reasonable time in circumstances which could give rise to an inference that responsibility was being taken for the comments.

However, the approach of the Court, and its apparent recognition of some of the problems posed by the new Digital Paradigm, is of particular interest. In addition the decision leaves open other aspects of publication on platforms other than Facebook such as blogs.

The Background to the Case

Mr Wishart was the author of a book called Breaking Silence, about a woman named Macsyna King. Ms King collaborated with him on the book. Ms King was the mother of Chris and Cru Kahui, who were twins. They died at the age of three months in 2006 from non-accidental injuries. Their father, Chris Kahui, was charged with their murder but acquitted. During his trial, he suggested that Ms King had inflicted the fatal injuries. A subsequent coroner’s report found that the twins had died while in Mr Kahui’s sole care. Nevertheless, suggestions implicating Ms King retained some currency in the public arena. The trial of Chris Kahui for the murder of the twins generated considerable public interest.

Mr Murray learned of the impending publication of Mr Wishart’s book in June 2011. He established a Facebook page called “Boycott the Macsyna King book.”  He used his Twitter account to publicise the Facebook page. He posted comments on Twitter and on the Facebook page criticising both Mr Wishart and Ms King. Mrs Murray posted comments on the Facebook page, as did numerous other people.

Mr Wishart commenced proceedings for defamation. He alleged a number of instances but one cause of action related to a claim against Mr Murray in relation to third party statements made by persons posting comments on the Facebook page. This post will be restricted to the way in which the Court dealt with that cause of action.

In the High Court Mr. Murray applied to strike out this cause of action. He was unsuccessful for the extensive reasons and analysis given by Courtney J and discussed in an earlier post. Hence, he appealed.

The Approach of the Court

The Court started by considering the following test applied by Courtney J and articulated by her as follows:

Those who host Facebook pages or similar are not passive instruments or mere conduits of content posted on their Facebook page. They will [be] regarded as publishers of postings made by anonymous users in two circumstances. The first is 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. The second is 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. (Para 117)

This holding identified two tests – the “actual knowledge” test and the “ought to know” test. It was argued for Mr Murray that the actual knowledge test should be the only test for publication. As a first stet the Court considered how the Facebook page worked. This is an important and necessary first step in determining the proper application of existing rules. The Court said (at para 84)

An analysis of the positions taken by the parties requires a careful consideration of exactly what happened in relation to the Facebook page and on what basis it is pleaded that Mr Murray became the publisher of the statements made by third parties on the Facebook page. Although Courtney J described those posting messages on the Facebook page as “anonymous users”, that was not correct on the evidence. In fact, most of the users who posted allegedly defamatory statements identified themselves by name, are named in the statement of claim and could be traced by Mr Wishart if he wished to take action against them. So his action against Mr Murray is not the only potential avenue for redress available to him, though it was obviously more practical to sue Mr Murray for all the offending comments rather than sue many of those commenting for their respective comments.

The Court went on to discuss the way in which the page was set up and operated by Mr Murray. It noted that Courtney J had noted that Mr Murray not only could, but did, take frequent and active steps to remove postings that he considered defamatory or otherwise inappropriate, and also blocked particular individuals whose views he considered unacceptable. She found that he could not, therefore, be perceived as a “passive instrument”. Furthermore, Courtney J found that Mr Murray blocked Mr Wishart and his supporters from the Facebook page, which made it more difficult for Mr Wishart to identify and complain about potentially defamatory material. This impacted upon whether Mr Murray ought to have known of the defamatory postings.

The Use of Analogy

After considering the factual background to Courtney J’s finding, the Court went on to consider the legal path by which she reached her conclusion, her reliance upon the decision in Emmens v Pottle (1885) 16 QBD 354 (CA) and discussed at length the various decisions to which she referred. The Court then made the following significant comment  (para 99):

The analysis of the cases requires the Court to apply reasoning by strained analogy, because the old cases do not, of course, deal with publication on the internet. There is a question of the extent to which these analogies are helpful. However, we will consider the existing case law, bearing in mind that the old cases are concerned with starkly different facts.

The Court then went on to consider the factual background to a number of cases that had been discussed by Courtney J. (paras 100 – 123) and the decision in Oriental Press Group Ltd v Fevaworks Solutions Ltd [2013] HKCFA 47 which was decided after Courtney J’s decision. That case considered whether a host of an internet discussion forum is a publisher of defamatory statements posted by users of the forum. Although the main focus of the decision was on the availability of the innocent dissemination defence, the Court also considered whether the forum host was a publisher. It rejected the analogy with the notice board or graffiti cases, because in those cases the person posting or writing the defamatory comment was a trespasser. Since the forum host played an active role in encouraging and facilitating the postings on its forum, they were participants in the publication of postings by forum users and thus publishers.

The Court of Appeal then considered the various authorities that had been referred to by Courtney J and found that they provided limited guidance because the particular factual situation before the Court had to be the subject of focus. The reason for this was that the Court’s analysis of the authorities showed how sensitive the outcome may be to the particular circumstances of publication, and the fact that many of the authorities related to publication in one form or another on the internet did not provide any form of common theme, because of the different roles taken by the alleged publisher in each case.

The Court went on to examine the drawing of analogies , especially from authorities which did not involve the Internet. While noting that analogy is a helpful form of reasoning they may not be useful in particular cases. The Court observed that it was being asked to consider third party Facebook comments as analagous with:

  1. the posting of a notice on a notice board (or a wall on which notices can be affixed) without the knowledge of the owner of the notice board/wall;
  2. the writing of a defamatory statement on a wall of a building without the knowledge of the building owner;
  3. a defamatory comment made at a public meeting without the prior knowledge or subsequent endorsement or adoption by the organiser of the meeting

The Court then considered the circumstances in Emmens v Pottle which established that a party can be a publisher even if they did not know of the defamatory material. The holding in that case was that a news vendor who does not know of the defamatory statement in a paper he or she sells is a publisher, and must rely on the innocent dissemination defence to avoid liability.

The Court of Appeal considered that news vendor in Emmens v Pottle did not provide an apposite analogy with a Facebook page host. It observed that a news vendor is a publisher only because of the role taken in distributing the primary vehicle of publication, the newspaper itself. This contrasts with the host of a Facebook page which is providing the actual medium of publication, and whose role in the publication is completed before publication occurs. The Facebook page is in fact set up before any third party comments are posted.

So was the Facebook page more like the “notice on the wall” situation described in Byrne v Deane [1937] 1 KB 818 (CA)? This analogy was not perfect either. In Oriental Press Group the Court found that posting a notice on a wall on the facts in Byrne v Deane  was a breach of club rules and therefore amounted to a trespass. The Court of Appeal did not consider that the breach of the club rules was a factor affecting the outcome but rather that the club and its owners had not posted the defamatory notice and, until they became aware of it, were in no position to prevent or bring to an end the publication of the defamatory message. If a case arose where the defamatory message was posted on a community notice board on which postings were welcomed from anyone, the same analysis would apply. Furthermore, in Byrne v Deane the post was truly anonymous. There was no way by which the person posting the notice could be identified. In the case of the Facebook host, posting messages in response to an invitation to do so is lawful; and solicited by the host. Similarly, the Facebook host is not the only potential defendant whereas in Byrne v Deane, as has been observed, the poster of the notice could not be identified.

The Court also considered that drawing an analogy between a Facebook page and graffiti on a wall was also unhelpful. The owner of the wall on which the graffiti is written is not intending that the wall be used for posting messages. A Facebook host is.

One argument that had been advanced was that an analogy could be drawn with a public meeting – although there is a danger in equating the physical world with the virtual. It was argued that if Mr Murray had convened a public meeting on the subject of Mr Wishart’s book, Mr Murray would have been liable for his own statements at the meeting but not for those of others who spoke at the meeting, unless he adopted others’ statements himself. The court felt the analogy was useful because it incorporated a factor that neither of the other two analogies do: the fact that Mr Murray solicited third party comments about Mr Wishart’s book. In addition speakers at a public meeting could be identified (and sued) if they made defamatory statements just as many contributors to the Facebook page could be. However, the public meeting analogy is not a perfect one in that statements at a meeting would be oral and therefore ephemeral unlike the written comments on the Facebook page but it did illustrate a situation where even if a person incites defamation, he or she will not necessarily be liable for defamatory statements made by others. That is the case even if he or she ought to have known that defamatory comments could be made by those present at the meeting.

Problems with the “Ought to Know” Test

The Court then expressed its concerns about the “ought to know” test and Facebook hosts. First, an “ought to know” test put the host in a worse position than the “actual knowledge” test. In the “actual knowledge” situation the host has an opportunity to remove the content within a reasonable time and will not be a publisher if this is done. In the “ought to know” case publication commences the moment the comment is posted.

What happens when a Facebook page host who ought to know of a defamatory comment on the page actually becomes aware of the comment? On the “actual knowledge” test, he or she can avoid being a publisher by removing the comment in a reasonable time. But removal of the comment in a reasonable time after becoming aware of it will not avail him or her if, before becoming aware of the comment, he or she ought to have known about it, because on the “ought to know” test he or she is a publisher as soon as the comment is posted.

Another concern was that the “ought to know” test makes a Facebook page host liable on a strict liability basis, solely on the existence of the defamatory comment. Once the comment is posted the host cannot do anything to avoid being treated as a publisher.

A further concern involved the need to balance the right of freedom of expression affirmed in s 14 of the NZ Bill of Rights Act 1990 against the interests of a person whose reputation is damaged by another. The Court considered that the imposition of the “ought to know” test in relation to a Facebook page host gives undue preference to the latter over the former.

A fourth issue concerning the Court was that of the uncertainty of the test in its application. Given the widespread use of Facebook, it is desirable that the law defines the boundaries with clarity and in a manner that Facebook page hosts can regulate their activities to avoid unanticipated risk.

Finally the innocent dissemination test provided in s. 21 of the Defamation Act would be difficult to apply to a Facebook page host, because the language of the section and the defined terms used in it are all aimed at old media and appear to be inapplicable to internet publishers.

Thus the Court concluded that the actual knowledge test should be the only test to determine whether a Facebook page host is a publisher.

Thus the decision clarifies the position for Facebook page hosts and the test that should be applied in determining whether such an individual will be a publisher of third party comments. But there are deeper aspects to the case that are important in approaching cases involving new technologies and new communications technologies in particular.

The Deeper Aspects of the Case

The first is the recognition by the Court of the importance of understanding how the technology actually works. It is necessary to go below the “content layer” and look at the medium itself and how it operates within the various taxonomies of communication methods. In this regard, it is not possible to make generalisations about all communications protocols or applications that utilise the backbone that is the Internet.

Similarly it would be incorrect to refer to defamation by Facebook or using a blog or a Google snippet as “Internet defamation” because the only common factor that these application have is that they bolt on to and utilise the transport layer provided by the Internet. An example in the intellectual property field where an understanding of the technology behind Google adwords was critical to the case was Intercity Group (NZ) Limited v Nakedbus NZ Limited [2014] NZHC 124.. Thus, when confronted with a potentially defamatory communication on a blog, the Court will have to consider the way in which a blog works and also consider the particular blogging platform, for there may well be differences between platforms and their operation.

The second major aspect of the case – and a very important one for lawyers – is the care that must be employed in drawing analogies particularly with earlier communications paradigms. The Court did not entirely discount the use of analogy when dealing with communication applications utilising the Internet. However it is clear that the use of analogies must be approached with considerable care. The Digital Paradigm introduces new and different means of communication that often have no parallel with the earlier paradigm other than that a form of content is communicated. What needs to be considered is how  that content is communicated and the case demonstrates the danger of looking for parallels in earlier methods of communication. While a Facebook page may “look like” a noticeboard upon which “posts” are placed, or has a “wall” which may be susceptible to scrawling graffiti it is important not to be seduced by the language parallels of the earlier paradigm. A Facebook “page” or a “web page” are not pages at all. Neither have the physical properties of a “page”. It is in fact a mixture of coded electronic impulses rendered on a screen using a software and hardware interface. The word “page” is used because in the transition between paradigms we tend to use language that encodes our conceptual understanding of the way in which information is presented. A “website” is a convenient linguistic encoding for the complex way in which information is dispersed across a storage medium which may be accessible to a user. A website is not in fact a discrete physical space like a “building site”. It has no separate identifiable physical existence.

The use of comfortable encoding for paradigmatically different concepts; the resort often to a form of functional equivalence with an earlier paradigm means that we may be lured in considering other analogous equivalencies as we attempt to try to make rules which applied to an old paradigm fit into a new one.

The real deeper subtext to Murray v Wishart is that we must all be careful to avoid what appears to be the comfortable route and carefully examine and understand the reality of the technology before we start to determine the applicable rule.

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Linking and the Law – Part 3

Linking and the Law

PART 3

 

8.            Linking and Publication – Ramifications for Defamation

There have been a number of cases that address the issue of whether or not posting a link can amount to publication for the purposes of defamation. It is not surprising that there is some divergence of opinion between Courts, and in essence the conclusion can be summed up with the phrase “it depends”.

A number of recent cases have involved Google. The important thing to remember is that not all the cases involving Google involve linking. One of the important English cases (Tamiz v Google[62]) deals with comments placed on a blog hosted by Google, and whether Google is a publisher for the purposes of defamation. The Australian cases of Trkulja v Google[63] and Trkulja v Yahoo[64] involve the return of search results (particularly involving illustrations the juxtaposition of which resulted in defamation by innuendo. Google’s general position is that it is a content neutral provider. Although this may be correct from a technological point of view, the matter becomes a little more complex when the way in which search results are displayed depends upon search algorithms developed by Google programmers and used in the delivery of search results. The issue of snippet – the brief record of the contents of the relevant web-page – and whether or not they can be defamatory was the issue in Metropolitan International Schools Ltd. v. Designtechnica Corpn.,[65] which held that despite the presence of this brief information, Google was not a publisher, although Abbot JA  in A v Google opined that it was arguable that Google was a publisher for the purposes of dismissing an application by Google for summary judgement striking out a claim for defamation. He left open the possibility “to hold that a search engine is a publisher but with access to the defence of innocent dissemination”.  Part of that determination may involve asking whether the automatic search result process contains a “stamp of human intervention”.

Curiously enough none of the cases referred to above carry any discussion of liability for simply providing a link to defamatory material. In all the cases there has been a deeper issue about services that are provided by Google, or the manner in which search results are displayed. However, the case of Crookes v Newton,[66] a decision of the Supreme Court of Canada provides authority at the highest level for the treatment of links in defamation proceedings. Indeed, the finding of the Court on links could well provide guidance in other areas of law. Before embarking upon that discussion there is an early New Zealand case that requires consideration.

The case of International Telephone Link Pty Ltd v IDG Communications Ltd[67]  involved an application to strike out a claim for defamation regarding references in an article to a website which was created by a third party.

The article in question contained a summary of a number of allegations against the plaintiff that had been made by a Mr Leng on a website that he had created “as a warning to others”. At the end of the article was the URL for Mr Leng’s website.[68] The plaintiff claimed that the defendant republished the website publication by making reference to it. It should be emphasised that the article contained a report or summary of the allegations that the plaintiff considered defamatory.

Counsel for the defendant argued:

1. That the defendants cannot be regarded as having communicated the contents of the Website to anyone; a person does not communicate words nor convey their meaning by identifying where they can be found.

2. The defendants did not cause nor participate in the creation of the Website and are therefore not parties to the publication inherent in that creation.

3. That the references to the website were to the entirety of the site, although only portions thereof were defamatory.

Master Kennedy-Grant swiftly rejected the third submission, observing that few documents are defamatory in their entirety It therefore does not matter that the Website is not defamatory in its entirety. [Pge 5 (2)] The second submission was deemed to be irrelevant. He then went on to identify the crucial issue as whether it is arguable that the references to the website in the article were sufficient communication of the defamatory contents of the website to constitute publication of those contents and referred to a number of cases from the late nineteenth and early twentieth century.

The cases relied upon by the Judge involved circumstances where attention was drawn to the existence of defamatory content. In Hird v Wood[69] a person who sat near a placard which allegedly defamed the plaintiffs and pointed to it was held to have published the contents of the placard, even though it was not shown that he had written or been a party to the writing of the offending words. In Lawrence v Newberry[70] a letter which was published in a newspaper referred readers of the letter to a speech that contained defamatory content. In Hird v Wood, there was an immediacy about what happened. In Lawrence v Newberry a curious person would have to obtain a copy of the text to the speech. Master Kennedy-Grant observed:

There does not seem to me any difference in principle between what had to happen in Lawrence v Newberry for the publishee to receive the information intended to be conveyed and what had to happen in this case. A hundred years ago the reader in question would have picked up a back number of The Times or gone to the reading room of the local library; today he or she would log onto the Net and access the Website.

He referred to other cases where there was held to be “publication by reference” and concluded:

(a) the authorities referred to by counsel favour the view that, even where there is a lack of immediacy between the reference and the possibility of reading the material referred to, there can be publication; and

(b) the question of whether there has been adoption or approval or repetition of the material referred to is essentially a question of fact and, as such, fit for determination at trial.

Significantly there was no discussion of the nature of a link as a means of referencing potentially defamatory content and the thrust of the rationale was based upon publication by reference. The Judge was unconcerned about the nature of the reference or how it was provided. All that was need was for attention to be drawn to the referred defamatory content.

One point of distinction in this case was the fact that there had been a summary of the defamatory content in the body of the article which appeared in Computerworld magazine. The decision does not make it clear that the article appeared in an on-line version of the magazine. But the provision of the information provides a context to the provision of the link to a website where the actual details of the defamatory content may be found. It is not as thought the link existed in isolation, but provided a reference point for further information.

8.1          Crookes v Newton[71]

A similar situation arose in the case of Crookes v Newton.

It is settled law that to succeed in a defamation action, a plaintiff must first prove that defamatory words were published. Crookes v Newton holds that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content.

The facts in that case were these.

The appellant Crookes brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent Newton posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.

The Court[72] began by considering the development of the publication rule. The scope of the rule was wide indeed. In one case a person whose role was to manually operate a printing press was found liable for defamatory words contained in the publication, despite being unaware of its contents. The rigour of the publication rule was ameliorated by the “innocent dissemination” defence, allowing booksellers and librarians to avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.

The majority then went on to consider the nature of a hypertext links as a means of publication and returned to first principles.“To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it.  Traditionally, the form the defendant’s act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant.  Applying this traditional rule to hyperlinks, however, would have the effect of creating a presumption of liability for all hyperlinkers. This would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

The functionality of hyperlinks as a form of “publication” was then considered:

Hyperlinks are, in essence, references, which are fundamentally different from other acts of “publication”.  Hyperlinks and references both communicate that something exists, but do not, by themselves, communicate its content.  They both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral.  Furthermore, inserting a hyperlink into a text gives the author no control over the content in the secondary article to which he or she has linked.

A hyperlink, by itself, should never be seen as “publication” of the content to which it refers.  When a person follows a hyperlink to a secondary source that contains defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel. Only when a hyperlinker presents content from the hyperlinked material in a way that actually repeats the defamatory content, should that content be considered to be “published” by the hyperlinker.

Thus the Court is saying that hyperlinks are essentially content neutral references to material that hyperlinkers

a) have not created and

b) do not control.

Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information. But the Court went on to consider a significantly wider issue – that of the internet itself.

The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.[73]

However, this did not mean that there was a blanket defence available for those who hyperlinked to defamatory material. A hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning.  However, this had not occurred in the present case, and the majority dismissed the appeal.

McLachlin C.J.C. and Fish J., whilst in substantial agreement with the majority, held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” A hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In such cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

Deschamps J agreed with the outcome but differed considerably in approach. A blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. Deschamps J considered that the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” She proposed a solution that was nuanced and fact specific. A hyperlink would constitute publication if the plaintiff established two elements:

a) that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and

b) that “a third party received and understood the defamatory material.”

As to the first element, the burden would be upon the plaintiff to establish that the defendant played more than a passive instrumental role in making the information available. There would need to be reference to numerous factors bearing on the ease with which the referenced information could be accessed.

To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.

The difficulty with this approach, and with the contextual approach suggested by McLachlin CJ and Fish J is that it would erode the “bright line” rule proposed by the majority and which provides certainty in this area. Deschamps J’s approach is fact driven, whereas the contextual approach is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. If the “bright line” rule provided by the majority were not present the proposals of the minority could have the effect of potentially inhibiting the use of hyperlinks to contentious material thus inhibiting the internet as a medium for free expression. This concern possibly encouraged the majority to establish their rule.

A further difficulty that follows from the minority approach is that it would shift the weight of litigation onto defendants in this difficult area. Although this is already the case with defamation as a “strict liability” tort  the effect of the minority approach would be to lower the threshold of proof for a plaintiff.  Internet users would be placed in the position of having to justify their conduct by reaching for the protection of a defence – and defamation proceedings are costly and beyond the resources of most. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by issuing gagging writs and intimidating defendants through costly litigation.

However, despite the welcome statement of the “bright line” rule by the majority, the case is not closed on hyperlinking. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks. These hyperlinks automatically display referenced material with little or no prompting from the reader. They are distinguishable from the user-activated hyperlinks in Crookes. User activated links require users to click on the hyperlink in order to access content.

The Court declined to comment on the legal implications of automatic or embedded hyperlinks.  It seems that they would constitute publication, according to the majority’s because they make third party content appear as part of the website that the hyperlinker controls. The third party material that is “linked-to” becomes a part of the users site and thereby constitutes publication by the user.

8.2       Concluding Thoughts on Crookes v Newton

The cases suggest as a starting point that links can be content neutral, and that their use may not have any legal implications nor attract liability if the material linked-to may be contentious. If the link acts as a reference point for “further reading or discussion” its function is clearly neutral.

The situation becomes different if the link goes beyond as reference point and adopts material in the linked-to site, or uses the site as an endorsement for the views expressed. This accords with the view of the majority in Crookes v Newton and was the situation in the case of International Telephone Link Pty Ltd v IDG Communications Ltd where the nature of material linked-to was coloured by the commentary published by the defendant.

Although Kaplan J seemed to focus more on the “electronic civil diosobedience” motive of the defendants in Universal City Studios v Reimerdes and Corley there can be little doubt that the use of links was anything but “content neutral” and was coloured by the commentary and actions of the defendants. It is for this reason that the differentiation between the defendants and an informational organ such as the LA Times becomes clear. In such a case the link has a referencing or “for further information” quality rather than the encouragement of an unlawful act.

Thus, although the “contextual” approach of McLachlin CJ and Fish J was that of a minority, nevertheless it cannot be denied that there is a contextual element that pervades the use of links. Although the decision of the majority provides welcome clarification, it is not absolute. The technologists may see links as mere code that enables internet navigation, and thereby is content neutral. The law sees it in a more nuanced way.

9.            The European View – Svensson v Retreiver Sverige AB

Linking, in the context of copyright infringement, has come under scrutiny in Europe. Under EU copyright laws, authors have the exclusive right to control the “communication to the public”  and “the making available to the public” of their works, whilst performers, producers and others also have exclusive right to control the “making available to the public” of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so. The general approach is that the rights around the ‘communication to the public’ are said to “cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting” and “should not cover any other acts”.

In the case of Svensson v Retreiver Sverige AB[74] The Court of Justice of the European Union (CJEU) has been asked to provide a ruling on how that EU law applies in the case of hyperlinks. The issue is whether  anyone, other than the holder of copyright in a certain work ,who supplies a clickable link to the work on his website, communicates the work to the public. The Swedish court has also asked whether the answer to that question changes if access to the content is restricted in some way or by the way the content is displayed after a link is clicked on.

The case  began when a Swedish journalist, Svensson, wrote an article which was published by a Swedish newspaper in print and on the paper’s website. An e-commerce company, Retriever Sverige AB, ran a subscription service which gave its customers access to newspaper articles.

Svensson sued Retriever Sverige AB for “equitable remuneration”, alleging that Retriever had made his article available to Retriever subscribers through the search and alert functions on its website. He stated that this came within the copyright-relevant acts of either a communication to the public or the public performance of a work. Whatever the situation, Retriever needed his consent and he had not granted it.

Retriever denied any liability. One of its key arguments was that the linking mechanisms did not constitute copyright-relevant acts, and there was therefore no infringement of copyright law. The fact that a Retriever customer had to log in to Retriever’s website and then fill in a search term was also relevant.

The European Copyright Society[75] in a submission to the Court has argued that the act of hyperlinking to copyright material without permission ought not to constitute outright infringement. In an 18 page submission[76] the Society argues[77]:

“Clearly, hyperlinking involves some sort of act – an intervention. But it is not, for that reason alone, an act of communication. This is because there is no transmission. The act of communication rather is to be understood as equivalent to electronic ‘transmission’ of the work, or placing the work into an electronic network or system from which it can be accessed. This is because hyperlinks do not transmit a work, (to which they link) they merely provide the viewer with information as to the location of a page that the user can choose to access or not. There is thus no communication of the work. As Abella J explained, speaking for the majority of the Supreme Court of Canada (in a case concerning hyperlinks and defamation):

‘Communicating something is very different from merely communicating that something exists or where it exists. The former involves dissemination of the content, and suggests control over both the content and whether the content will reach an audience at all, while the latter does not….

Hyperlinks … share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral — it expresses no opinion, nor does it have any control over, the content to which it refers.’

The Society provided a very strong and technologically correct statement on the function of a link within the context of transmission and communication of a work.

“(a) Hyperlinks are not communications because establishing a hyperlink does not amount to “transmission” of  a work, and such transmission is a prerequisite for “communication”

(b) Even if transmission is not necessary for there to be a “communication”, the rights of the copyright owner apply only to communication to the public “of the work”, and whatever a hyperlink provides, it is not “of a work””[78]

In addition, the Society argued that  the CJEU should generally uphold that hyperlinking does not constitute a communication to the public of copyrighted content regardless of the ‘framing’ given to the content when it appears after a hyperlink has been clicked on.

“In so far as there might be technical differences in some cases where the work is made available from the server of a person providing a hyperlink, it is our view that, even were there an act of communication or making available, such a communication or making available is not “to the public” because it is not to a “new” public – it is a public which already had the possibility of access to the material from the web. Just as an improved search-engine that improves the ability of users to locate material for which they are searching should not be required to obtain permission as a matter of copyright law, so providing links or access to material already publicly available should not be regarded as an act that requires any authorisation.”[79]

Reference was also made to domestic court cases from Germany and Norway which are consistent with the views advanced by the European Copyright Society.

In Paperboy,[80] the German Bundesgerichtshof found that the “paperboy search engine” which searched newspaper websites and provided search results including hyperlinks, did not thereby infringe. The Court considered whether hyperlinking was “communication” under German law and under Article 3 of the Information Society Directive, 2001/29, concluding that there was no infringement. It observed:

[42] A person who sets a hyperlink to a website with a work protected under copyright law which has been made available to the public by the copyright owner, does not commit an act of exploitation under copyright law by doing so but only refers to the work in a manner which facilitates the access already provided …. He neither keeps the protected work on demand, nor does he transmit it himself following the demand by third parties. Not he, but the person who has put the work on the internet, decides whether the work remains available to the public. If the web page containing the protected work is deleted after the setting of the hyperlink, the hyperlink misses. Access to the work is only made possible through the hyperlink and therefore the work literally is made available to a user, who does not already know the URL as the precise name of the source of the webpage on the internet. This is however no different to a reference to a print or to a website in the footnote of a publication. 

[43] The Information Society Directive, …., has not changed the assessment of hyperlinks, as are in question here, under copyright law … According to Art.3(1) of the Information Society Directive Member States are obliged to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public of their works in such a way that members of the public may access them from a place and a time individually chosen by them. This provision refers to the use of works in their communication to the public. The setting of hyperlinks is not a communication in this sense; it enables neither the (further) keeping available of the work nor the on-demand transmission of the work to the user.

In Napster.no[81], the Supreme Court of Norway held that the posting on a website (in this case, http://www.napster.no) of hyperlinks that led to unlawfully uploaded MP3 files did not necessarily constitute an act of making the files available to the public. It stated:

“[44] There has been no dispute that those uploading the music files carried out illegal copying and made the works publicly available. If the linking is regarded as making works publicly available, this will concern linking to both lawfully and unlawfully disclosed material. The conception of what constitutes making works publicly available must be the same in both cases…

[45] The appellants claim that the linking involved an independent and immediate access to the music. A [the respondent] for his part has  pointed out that the links only contained an address to a webpage and  that, by clicking on the link, the music file would be stored temporarily on the user’s own computer. Not until such storage took place would the user be able to play the music file or download it for later use.

[46] In my opinion, it is not decisive whether [direct/deep links] or [superficial links – links to the main page of the website] are involved, nor whether the user technically is “located” on his/her own computer, on napster.no, or has “moved” to the website to which the link leads. What must be decisive is how the technique functions – whether and how access is given.

[47] It cannot be doubted that simply making a website address known by rendering it on the internet is not making a work publicly available. This must be the case independent of whether the address concerns lawfully or unlawfully posted material…”

The European Copyright Society also referred to the case of Perfect 10 v Google Inc.,[82] a decision of the 9th Circuit Court of Appeals.

10.          Perfect 10 v Google – Moving Away from Reimerdes & Corley

The factual background was as follows:

Perfect 10 marketed and sold copyrighted images of nude models. Among other enterprises, it operated a subscription website on the Internet. Subscribers paid a monthly fee to view Perfect 10 images in a “members’ area” of the site. Subscribers had to use a password to log into the members’ area. Google did not include these password-protected images from the members’ area in Google’s index or database. Perfect 10 also licensed Fonestarz Media Limited to sell and distribute Perfect 10’s reduced-size copyrighted images for download and use on cell phones.

Some website publishers republished Perfect 10’s images on the Internet without authorization. Once this occurred, Google’s search engine automatically indexed the webpages containing these images and provided thumbnail versions of images in response to user inquiries. When a user clicked on the thumbnail image returned by Google’s search engine, the user’s browser accessed the third-party webpage and in-line links to the full-sized infringing image stored on the website publisher’s computer. This image appeared, in its original context, on the lower portion of the window on the user’s computer screen framed by information from Google’s web-page.

Perfect 10 sued Google claiming that the latter’s “Google Image search” infringed Perfect 10’s copyrighted photographs of nude models, when it provided users of the search engine with thumbnail versions of Perfect 10’s images, accompanied by hyperlinks to the website publisher’s page.

The Court commenced by examining the operation of Google’s search engine and the way in which searches were returned and the operation of the links that were provided to such returns. It observed that there was no dispute that Google’s computers stored thumbnail versions of Perfect 10’s copyrighted images and communicated copies of the thumbnails to Google users. However, it also noted that Google did not display a full sized infringing image when Google framed in-line linked images that appear on a user’s computer screen.

“Because Google’s computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any “material objects … in which a work is fixed … and from which the work can be perceived, reproduced, or otherwise communicated” and thus cannot communicate a copy.”[83]

The Court went on to look at the way that the technology operated:

“Instead of communicating a copy of the image, Google provides HTML instructions that direct a user’s browser to a website publisher’s computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause in-fringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display rights.”

It was for that reason that the Court concluded that

“Google’s search engine communicates HTML instructions that tell a user’s browser where to find full-size images on a website publisher’s computer, but Google does not itself distribute copies of the infringing photographs. It is the website publisher’s computer that distributes copies of the images by transmitting the photographic image electronically to the user’s computer.”[84]

This case is useful in that it considers the nature of the technology in arriving at its conclusion. However, unlike Crookes v Newton which attempted to lay down some bright line rules about links and their general function within the legal framework, the decision in Perfect 10 is fact specific. Whilst, within the factual matrix of the case, Google was not liable for direct infringement, there was still the problem of assisting third-party websites in distributing their infringing copies of photographs to a worldwide market and assisting worldwide audience of users to access infringing materials, for purpose of Perfect 10’s contributory infringement claim.

In addition, the decision seems to be a step away from Judge Kaplan’s approach in Reimerdes & Corley which relied on the “functional equivalence” approach. The Court in Perfect 10 effectively adopted a content neutrality approach to the issue of direct infringement, focussing especially upon the nature of the code and the HTML instructions which they held were not equivalent to showing a copy. Applying the approach in Reimerdes & Corley that would amount to a “distinction without a difference” but the more recent cases seem to demonstrate a shift away from such a rationale to a more nuanced understanding of links and their use as a coded reference point.[85]

Return to Svensson

Which brings us back to Svensson and the recent decision of the Court of Justice of the European Union (CJEU). This decision could be viewed as a compromise. It contains some relief to those who link to content, but at the some time hedges that around with exceptions. Regrettably the decisions seems to take little account of the technological underpinning of hyperlinking, nor that fact that links are in essence neutral. AT the same time it must be remembered that the decision relates to EU copyright law and therefore cannot be said to contain rules of universal application.

In summary the Court held as follows:

      1. A clickable direct link to a copyright work made freely available on the internet with the authority of the copyright holder does not infringe.
      2. It makes no difference to that if a user clicking on the link is given the impression that the work is on the linking site.
      3. However, it seems that a clickable link will (unless saved by any applicable copyright exceptions) infringe if the copyright holder has not itself authorised the work to be made freely available on the internet.
      4. If the work is initially made available on the internet with restrictions so that only the site’s subscribers can access it, then a link that circumvents those restrictions will infringe (again subject to any applicable exceptions and further discussion below).
      5. The same is true where the work is no longer available on the site on which it was initially communicated, or where it was initially freely available and subsequently restricted, while being accessible on another site without the copyright holder’s authorisation.

Within the context of copyright law, if material is made freely available on the Internet by the copyright holder, there are no infringement implications. Linking to the content, assuming that a link amounts to an act of communication, does not constitute infringement. The Court said: “the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision.”

Graham Smith on his Cyberleagle blog makes the following comment:

“Taken at its face, that could suggest that a link to any freely available work does not infringe, regardless of whether the copyright holder initially authorised the work to be made freely available on the internet. That would broadly legitimise most links. But if that is right it is difficult to understand the numerous references in the judgment to whether the copyright holders authorised the initial communication to the public on the internet, and the potential audience contemplated when they did so.  It seems likely that the operative part should instead be understood to mean:
“…the provision on a website of clickable links to works freely available on another website, in circumstances where the copyright holder has authorised such works to be made freely available at [that]/ [an] internet location, does not constitute an ‘act of communication to the public’ … .”
The alternatives ‘that’/‘an’ reflect the possible uncertainty about the effect of the judgment on links to unauthorised copies where the copyright holder has authorised the work to be freely available at some other location on the internet.”

The situation begins to get complex if the copyright holder has not authorised the placing of the material on the Internet.. Once again there is little contentious in this proposition. The placing of material on the Internet without the authorisation of the copyright holder (and making it available) involves acts of infringement unless one can fall within exceptions or claim a permitted act. The issue seems to become a little more complex, but in reality it is not, if the content is place on the Internet with the approval of the copyright holder but is subject to restrictions which are subsequently circumvented. Clealry, unless one can fall within exceptions or establish a permitted use, there ar infringement implications in providing such material.

There are a couple of observations that must be made about the CJEU decision. The first is that it is not a decision about the implications of hypertext links. There is no discussion about the technology or implications of hypertext links. In that respect the decision is a little disappointing. Secondly, what the decision IS about is the nature communication within the context of copyright law. It is, therefore,  a decision about copyright.

A factor which complicates the issue of communication is whether or not there has been communication to a “new public”. Laurence Eastham at the Society for Computers and the Law makes the following observations:

“The Court points out, however, that the communication must be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders at the time the initial communication was authorised. According to the Court, there is no such ‘new public’ in the case of the site operated by Retriever Sverige. As the works offered on the site of theGöteborgs-Posten were freely accessible, the users of Retriever Sverige’s site must be deemed to be part of the public already taken into account by the journalists at the time the publication of the articles on the Göteborgs-Posten was authorised. That finding is not called into question by the fact that the internet users who click on the link have the impression that the work is appearing on Retriever Sverige’s site, whereas in fact it comes from the Göteborgs-Posten.

The Court concludes from this that the owner of a web site, such as that of Retriever Sverige, may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site.

The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, since in that situation, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication.”

So is Svensson a helpful decision. The general reaction is positive. Iain Connor makes the following assessment:

 “On the whole, this is a good decision for rights holders and consumers alike. It makes clear that you can provide links to content freely available on the web but that you need permission from the copyright holder in all other circumstances and so it puts rights holders in control of their business model.”

“The slight wrinkle is that where content is freely available, the decision appears to allow it to be ‘framed’ on a third party website,” he said. “However, it should be possible to manage the framing issue by robust website terms and conditions and other legal means such as the author’s right not to have his work falsely attributed to another.”

By focussing on communication, the Court avoided the thorny issue of the function and essential meaning of hypertext links. This was probably by design. By restricting their decision strictly to the ambit of the questions posed by the national court, the CJEU adopted a narrow focus the the issue, restricting the decision to the questions at hand and further restricting the decision to the strict framework of copyright law. The issues have been addressed strictly within that context and the content neutrality (or partiality) of hypertext links need not, therefore, have been considered.

11.             Linking — issues arising

The cases that have been decided on the issue of linking do not establish with any degree of clarity that the provision of a link in all cases will automatically result in a copyright infringement. The mere provision of a link does not mean that a copy is made. Rather like a signpost, it directs a user to a particular site from which information may be obtained. The link itself does not involve copying material from another website.

Thus the mere provision of a link should not incur any direct liability for copyright infringement of website material. The work that is at the destination of the link is neither displayed nor communicated. The user is merely told where the work may be found.

When the site is accessed and temporary copies have been made into RAM, the matter is one between the copyright owner and the browser. Claims for secondary infringement against intermediaries will be futile.[86] The mere provision of a link without more does not implicate the link provider. It seems to have been the case in Universal City Studios v Reimerdes[87] and RIAA v Napster[88] to pursue the provider of the links or the operator of the Napster server using US contributory infringement theory as an expedient rather than pursue the millions of unidentified direct infringers. However, in the absence of any issues of contributory infringement, encouragement or interference with property rights that are inherent in framing and deep linking, the link provider commits no infringement.

Browsing webpages, if it is to be a “functional equivalent” of anything, may be the equivalent of reading a book in an environment akin to a public library. It thus falls outside the acts restricted by copyright, and there is no basis for secondary liability claims.

It may also be argued that anyone who places material on the internet without effective restrictions grants an implied licence to an internet user to make copies of the material and to any other website operator who links to it. The vast scope of the internet makes contractual solutions — agreements between owners of linking and linked-to sites — almost impossible.[89]

In this context, one must question whether the issue of implied licences is appropriate for issues involving copyright.[90]

First, it is unclear that an implied licence could apply in the case of a deep link that circumvents the main page and the advertising placed on it. It could be argued that the owner of a website grants a licence to browse the site, but in the way the creator of the website intended and designed it. However, one commentator suggested that the argument of an implied licence is still tenable even in the event of linking to deep pages in a website.[91]

Secondly, the use of web linking agreements that explicitly state that permission is required can avoid the argument for an implied licence. Such web agreements are becoming more common, and the implied licence then cannot work against the clearly expressed will of the copyright owner, as agreed with the author of the linking site.

However, even the defenders of these kinds of agreements recognise that the suggestion of a contract being necessary to link to a website seems contradictory to the ethos of the internet, and suggest that, for normal links, these kinds of agreements are unnecessary. One can link without permission and without having to give notice to the copyright owner.

Web linking agreements, according to this view, should still be useful for embedded links and especially for frames, and as a precautionary measure taken by the operator of a commercial website that wants to be sure that it will not face liability for the links that it is providing.

In addition, some owners have attempted to negate implied licence by inserting “Terms of Use” that explicitly deny the existence of implied licence to link, but these disclaimers are often inconspicuous, and may be considered unenforceable.

Thirdly, the implied licence doctrine is an aspect of contract law, essentially an estoppel doctrine, and it does not fit well with the traditional copyright law, because such a factual contract would not seem to arise between strangers who do not have a previous relation, legal or de facto.

Finally, in the case of copyrighted materials posted on webpages without the consent or the knowledge of the owner, it is clear that this argument cannot work because the implied licence is based on the premise that the owner knew that his or her material would be available on the internet.

In terms of copyright law, fair dealing is a far more satisfactory solution. It is clear that some form of statutory amendment would be required to the New Zealand Copyright Act 1994 because to attempt to apply the fair dealing provisions of that legislation[92] to webpages may strain the language of the statute.

Under the fair use defence in the US there is no infringement if the use is fair, even if the use violates one of the copyright owner’s exclusive rights. Four factors are considered in determining whether a use is fair:

1.   the purpose and character of the use, including whether such use is for a commercial nature or is for non-profit educational purposes;

2.   the nature of the copyrighted work;

3.   the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4.   the effect of the use upon the potential market for or value of the copyrighted work.[93]

The purposes and character of linking are closely related to the purpose of the internet, which is to provide information freely to the public in an accessible manner. Where the nature of the linked page is commercial or non-fictional and where the linked page is a small and insubstantial part of the plaintiff’s work, in the absence of a commercial or profit-making use, browsing should qualify as fair use. As far as the fourth requirement is concerned, linking could be said to be an advantage.

In the context of the world wide web the link expands the potential market of the linked site, because more people are able to easily find and access the site. Even if accessing a website through a link does make a copy of the whole work, this factor does not have to be decisive in the majority of cases and fair use can be successfully invoked.

So far the issue of simple linking has been considered. It is clear that the cases outlined recognise that different considerations apply to deep linking and framing that involves the diversion past a normal entry point to a website (along with any notices, terms or conditions of use, advertising and the like) to material of value to the user, or, in the case of framing, the apparent appropriation of another user’s material and inclusion as part of another, unrelated site.

The cases on deep linking demonstrate that a deep link potentially prejudices the linked-to site by circumventing advertising material and possibly prejudicing the linked-to site’s income, especially if advertising revenue is based on the number of times the page containing the advertising is accessed. Although the objective in providing a deep link may be to provide relevant information (which is the major purpose of the internet) nevertheless there is an expectation on the part of a site owner that access to the site will be reached via a home or starting page.

However, given the nature of the internet as an information-disseminating medium, and the essentially “public nature” of information available on the internet, and the fact that it is potentially available for world wide distribution and access, and given that in essence a link is no more and no less than a signpost, it is suggested that it need not follow as a matter of course that a deep link should be seen as a copyright infringement. Rather, greater value should be placed on the availability of information than on the fact that access to that information has been other than through a home page. As additional factors, the person or organisation behind the linked-to site:

•    knows the nature of the web and that the link is a means of access and navigation;

•    is taking advantage of the tremendous reach that the web offers; and

•    has available certain technological means of restricting access to parts of the site.[94]

Given the third factor, it would be a simple matter to establish copyright infringement if a person linking to the site used some sort of “hack” or “software solution” to gain access to the deep-linked material by circumventing the means employed to restrict access.

Another option is to place a higher burden of proof on a person alleging infringement by deep linking in terms either of standard of proof or of the criteria to be established to prove infringement. Among such criteria could be actual (as opposed to potential) damage or provable loss of revenue or patronage as an ingredient of the infringement rather than the quasi-strict liability copyright law approach that deems unauthorised copying to be infringement.

Framing creates another situation in terms of intellectual property. Framing is a function of software, having been introduced as a feature of Netscape 2. It is now widespread within browser software. Many sites require that for a user to access them, a frames-capable browser should be used. Unlike linking, however, framing is not a fundamental part of the architecture of the world wide web. In addition, framing is far closer to traditional print-based copyright theory than linking in that framing may give the impression that the web material framed in the window of site A belongs to and is a part of site A rather than in fact belonging to site B. In effect, framing without attribution is a clear appropriation of site B’s material and can be protected by ordinary copyright principles. To avoid such difficulties, many websites open a linked-to site in a completely new window, thus identifying the linked-to material by name and by URL.

12.             The Threat to the Web

The challenging of links based on copyright theory raises a greater issue as far as the internet is concerned. This goes to the heart of the function of the world wide web, the architecture and environment of the internet and the way in which, if at all, such fundamental aspects of the new technology are going to be regulated or governed.

Linking is what gives the web its awesome power. It is an attraction for ordinary people who wish to obtain information quickly and easily without having to understand the mysteries of code or remember complex address parameters or details. Linking is an indispensable tool that allows internet users to benefit from information that is located on the web. To establish that a mere link or mere browsing infringes copyright would be the equivalent of killing the world wide web, which represents the internet to the majority of computer users.

Linking seems to have attracted the attention of copyright specialists because it provides a means by which potential infringements may take place by directing users to copyrighted material. Thus, although the link is merely what could be classified as an intermediate step in the process of potential infringement, it seems to have assumed a significance that goes beyond what it really is. Further, it gives copyright owners a convenient target — the owner of the linking site — rather than the ultimate consumer, and even then there may be some doubt as to whether there has in fact been an infringement by the mere accessing of a webpage without more.

Linking holds no mystery. A link is merely a line of code that allows a step to be taken. Tim Berners-Lee, who developed the world wide web at the European Organisation for Nuclear Research (CERN),[95] puts the matter as “the intention in the design of the web was that normal links should simply be references, with no implied meaning”.[96]

The contents of the linked document may contain meaning and often do but the link itself does not. A recommendation to go to a particular site followed by a link, or even the embedding of a hypertext reference (HREF) within the recommendation does not add any extra meaning to the link.

A useful analogy for a link is to treat it as a card index system in the library that directs a researcher or library user to a particular location within the shelves of the library. The library card carries no more information than is necessary to enable the user to satisfy him or her that the book is the one that is sought and to locate it.[97] A hypertext link does not even go this far. It only contains the information about the location of the information on the destination site and makes that site available to the computer user.

However, it is, as has already been stated, an essential part of the architecture of the internet. This then raises a question that relates to the way in which the law applies to the internet, and touches on an even deeper issue that is the purpose of law itself.

The purpose of the law is to regulate the behaviour of individuals within society. One of the areas that the law has been unable to regulate is the environment within which individuals operate. That environment is governed by what we may refer to as the “laws of nature” or the “laws of science”. It is, if you like, the architecture within which society operates.

Similarly with the internet — inherent within what has been called cyberspace is a fundamental architecture or system within which we may operate and without which the internet or parts of it cannot function. An example may be found in the TCP\IP protocol that allows different computers to communicate with one another. Another is the system of IP numbers that are assigned to machines on the internet. Although we may set rules for the assignation of IP numbers[98] the internet simply will not function without these two essential aspects of the internet environment or its architecture. This environment or architecture is not a part of nature such as is the real world environment. It is created by human beings. However, that architecture sets the metes and bounds of the internet or cyberspace and receives its expression in code.

The world wide web built on existing internet protocols and added another dimension to the internet. However, what the world wide web actually is and its limitations are governed by the code that makes it operate. Part of that system of operations is hypertext linking, activated in code by the term HREF. Linking cannot take place without the HREF expression. Thus linking is an essential part of the architecture and the environment of the world wide web. To attempt to limit or regulate its use is rather like a Judge trying to slow the growth of a tree by judicial decree.

Lest it is suggested that it is not the architecture that is being regulated but the way in which people behave — that is, utilise the architecture — we must return to first principles and see what the HREF expression does. Unlike a mechanical creation, which may be used for good or ill, HREF allows only one thing and that is a hypertext link — a means of locating a page and bringing it into a user’s computer. To attempt to legislate or regulate what is an essential part of the web does violence to the environment within which the internet user may expect to operate. Indeed, the most extreme view might be that for the purposes of ensuring that internet users have certainty in terms of the lawfulness of their activities within the environment, the law should not concern itself with issues of the use of basic and necessary parts of the internet by using copyright theory to limit the use of these fundamental operators. The real issue should be with the use that the ultimate user may make of copyrighted material. If that causes copyright owners a problem in terms of detection and enforcement so be it. Back-door methods should not be used which do violence to the internet environment and simultaneously to legal principle.

In a sense the code or the architecture of the internet limits the way in which the law can be applied to regulate or govern it. In a sense the code and the architecture that it provides imposes its own regulatory metes and bounds not only in terms of what may or may not be done, but in terms of the boundaries of any regulatory or governance system that may be imposed upon it by the law, either as pronounced by the Courts or by legislative bodies.

If, however, linking activity is going to be the subject of regulation under, say, principles of copyright, the effect upon the internet will be dramatic.[99]

First, the internet will cease to be the free information environment that it was originally conceived to be. Freedom of navigation for information on the internet will become restricted in the same way that “real space” is. The freedom that users enjoy to link to content on similar subjects whereby a collection of links on, say, copyright law are all brought together, may be compromised or indeed become impossible. Not only would the free information environment be restricted but the utility of the internet as a source of information would be hampered.

Secondly, the internet could become divided into a number of information “zones” of open and closed areas. Distinctions between sources of information may be made on a number of criteria, among them pricing considerations, the willingness of a user to provide information about himself or herself, the willingness of a user to accept additional information on products or services, whether the site is a commercial site or a non-commercial one and so on. In some respects this is already taking place. For example, when the New York Times Cyberlaw Journal existed online it was often linked to from legal sites. However, a visitor to that site for the first time was unable to access it until he or she registered, and that registration was specific to the particular machine. Thus, if the user wished to access the Cyberlaw Journal from another machine, the registration information (user name and password) had to be re-entered. The New York Times Cyberlaw Journal was free of charge, but the mechanism prevented casual access to the site by deep linking.

Other technological solutions may be available such as requiring a password to gain access, or building dynamic webpages that only appear when the user uses a certain program. There may be feasibility issues for commercial sites who would try to obtain as big a reach as possible that would mitigate this solution, although it may be satisfactory for non-commercial sites. The irony is that the complaints about deep linking arise mainly from commercial sites, whereas non-commercial sites are generally more attuned to the “information wants to be free” ethic that underpinned the early internet.

It is possible to program webpages to reject linking from unwelcome sources or users. In a sense this is a logical and acceptable solution, for it puts control of access to the site in the hands of the site owner. This enables the owner to obtain the exposure that is required while at the same time preventing unwelcome links, such as in the case of Havana House Cigars in New Zealand. Framing may also be prevented in that the frame may be “dissolved” thus enabling the user to see the entire page from its source and not as a part of another site.

There is no doubt that there will be further litigation about links and in the near future there will be some considered and possibly definitive solutions. However, those solutions will further obscure this complex area. Decisions emanating from the US will have to resolve apparent conflicts between the Digital Millennium Copyright Act and the Constitution of the US, in particular the First Amendment. With legislation in Australia in force another outcome may well be presented, for Australia has no constitutional equivalent to the US Constitution or its Amendments.[100]

Thus it is likely that there will be a jigsaw of rules and regulations limited by territorial jurisdictions and applicable in some areas and not in others. The casualties in the resolution of these conflicts will be the law, which, when territorially based will be unable to provide consistency and certainty for an environment that does not know borders, and tragically the internet itself.

13.             Conclusion

There are those such as Goldsmith[101] who call for internet regulation and a system of governance. There are others, such as John Perry Barlow,[102] who see the internet as the last frontier for freedom, and who quail at any form of intrusion by the law.

It is necessary to remember that the internet is primarily a means of conveying information. It is not without reason that many emphasise the internet as an important component of the so-called “knowledge economy”. Issues of technology convergence and the use of the internet for business and commerce mean that necessarily the law has a place in the digital environment. In many cases existing legal rules govern these relationships. In some cases, new solutions will have to be devised. Information that is available in a book that can be borrowed from a public library should not be proscribed merely because that same information is available online and can be obtained by clicking on a hypertext link. By the same token, information available on the internet should not be proscribed merely because it is there, especially if it is legitimately available from another source.

What will require care is to ensure that the digital environment receives the same treatment as the “real world” and that restrictions and inhibitors on activities and relationships that are not present in the real world seem to become available in or intrude on the online environment.


[62] [2013] EWCA Civ 68

[63] [2012] VSC 533

[64] [2012] VSC 88

[65] [2009] EWHC 1765

[66] [2011] SCC 47

[67] H C Auckland, 19 January 1998, CP 344/97 Master Kennedy-Grant

[68] The domain name of which was the subject of litigation – see NZ Post v Leng [1999] 3 NZLR 219

[69] (1894) 38 SJ 234 (CA).

[70] (1891) 64 LT 797

[71] [2011] SCC 47

[72] By a majority decision comprising Binnie, LeBel, Abella, Charron, Rothstein and Cromwell JJ.

[73] At para [36]

[74] Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 18 October 2012 – Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB http://curia.europa.eu/juris/document/document.jsf?text=&docid=130286&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1258343 (last accessed 19 March 2013).

[75] The European Copyright Society is a year-old group of academics and scholars that it has said seek to “promote their views of the overall public interest”. The group’s opinion on the issues before the CJEU was formed by 17 academics from across Europe, including Professor Lionel Bently from Cambridge, Professor Graeme B Dinwoodie of Oxford University and Professor Martin Kretschmer, the director of CREATe at the University of Glasgow.

[76] Opinion on the reference to the CJEU in Case C-466/12 Svensson – 15 February 2013 http://www.ivir.nl/news/European_Copyright_Society_Opinion_on_Svensson.pdf (last accessed 19 March 2013).

[77] Ibid. paras [35 – 36].

[78] Ibid. para [6 (a) – (b)]. The argument is developed later in the submission by a careful analysis of CJEU cases on the notion of communication and the significance of transmission – see paras [23 – 26]

[79] Ibid. para [55].

[80] Case I ZR 259/00 (17 July 2003) [2005] ECDR (7) 67, 77,

[81] (2006) IIC 120 (27 January 2005)

[82] 487 F. 3d 701 (2007)

[83] Ibid. p. 717

[84] Ibid. p. 718

[85] Having said that it must be noted that Perfect 10  was a decision of the 9th Circuit whereas Reimerdes & Corley was a decision of the 2nd Circuit. The matter will only be definitively resolved by accord between the decisions of the Circuits or a decision of the Supreme Court of the United States.

[86]      In Europe this exclusion was embodied in art 5.1 of the Proposal for a Directive on Copyright and Related Rights in the Information Society, approved 10 December 1997.

[87]      111 F Supp 2d 294 (SDNY 2000), 273 F 3d 429 (2d Cir NY 2001).

[88]      114 F2d 896, 239 F3d 1004.

[89]      P Jakab “Framing Technology and Link Liability” Internet Law Symposium (1998) Pace Law Review 23–25; On contractual solutions see, “Weblinking agreements, Contracting Strategies and Model Provisions” (1997) Section of Business Law American Bar Association; M Luria “Controlling Web Advertising: Spamming, Linking, Framing and Privacy” (1997) 14/1 The Computer Lawyer, 10–22.

[90]      Although it is far more apposite to patent law. Indeed, the defence of implied licence in the US is an affirmative one and it cannot automatically be asserted that it is available. In order to determine whether such an implied non-exclusive licence exists, every objective fact concerning the transaction should be examined to determine whether it supports such a finding. Several objective inquiries can be made in this regard, including an assessment of whether the delivery of the copyrighted material was without warning that its further use would constitute copyright infringement. See Edward A Cavazos and Coe F Miles, “Copyright on the WWW: Linking and Liability” 4 Richmond Jnl of Law and Technology (1997) para 40 and following http://law.richmond.edu/jolt/v4i2/index.html (last accessed 21 March 2013).

[91]      Maureen O’Rourke, “Fencing Cyberspace: Drawing Borders in a Virtual World”, 82 Minn L Rev 609, 660.

[92]      Part 3, ss 40–93.

[93]      USCS 107.

[94]      Special log-in, registration, provision of information for the payment of a fee or a technological way of ensuring that access to the “deep-linked” page is only possible by way of the entry page.

[95]      http://public.web.cern.ch/Public/Welcome.html (last accessed 21 March 2013).

[96]      Tim Berners-Lee, “Links and Law” http://www.w3.org./DesignIssues/LinkLaw (last accessed 21 March 2013).

[97]      The analogy of a referencing system was used in Crookes v Newton [2011] SCC 47

[98]      One of the functions of ICANN.

[99]      The Copyright Amendment (Digital Agenda) Act 2000 (Australia) which substantially amends the Copyright Act 1968 provides that copyrighted subject-matter is not infringed by making a temporary reproduction or copy of the subject-matter as part of the technical process of making or receiving a communication, provided that the making of the communication is not an infringement of copyright (ss 43A and 111A). Although this substantially clarifies the position as far as incidental copying associated with online activity is concerned, the legislation remained silent on the issue of hyperlinks. There is no relevant Australian case law on the issue although an early draft of the Digital Agenda Bill suggested that one of the objects of the legislation was to relieve uncertainty as to whether practices such as internet browsing and hyperlinks violated the Copyright Act. However, the matter has been left to the Courts. See Maree Sainsbury, “The Copyright Act in the Digital Age” 11 Jnl Law and Information Science 182.

[100]     For an example of conflicting outcomes between Australia and England see Sony Computer Entertainment v Owen [2002] WL 346974 (Ch D), [2002] EWHC 45 and Sony Computer Entertainment v Stevens (2002) FCA 906 (26 July 2002).

[101]     “Against Cyberanarchy” 65 U Chicago LR 1205.

[102]     “A Declaration of Independence of Cyberspace”, 8 February 1996, https://projects.eff.org/~barlow/Declaration-Final.html  (last accessed 21 March 2013).

Facebook Friends: 3rd Party Comments and Publication for Defamation

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 [1989] 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 [2001] QB 201 and Bunt v Tilley [2006] 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 ([2009] EWHC 1765 (QB), [2011] 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 [2012] 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:

[23] … 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.
[24] 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.

[25] 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 …

[26] 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 [1990] 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 [2011] 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:

[33] … 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.
[34] … 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 [2012] 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 ([1937] 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.

Comments

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.

Note:

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