Liabilities of discussion forum owners in NZ?

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nickb99

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Master Geek

#111816 15-Nov-2012 18:47

As part of a uni project I am suggesting that our client set up a discussion forum like Geekzone for their community. Is there any specific law that protects commercial/not for profit forum owners here? Have there been any known problems...? Are they legally responsible for the posts of their community?
Any information and advice appreciated.

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Uber Geek

#717868 15-Nov-2012 18:51

nickb99: As part of a uni project I am suggesting that our client set up a discussion forum like Geekzone for their community. Is there any specific law that protects commercial/not for profit forum owners here? Have there been any known problems...? Are they legally responsible for the posts of their community?
Any information and advice appreciated.

Some good questions, and probably only a lawyer can answer them. IANAL, but I think a forum and anything posted on the internet is considered a publication, so could be treated the same way as if something has been published in a book or newspaper with that content.

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muso

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#717902 15-Nov-2012 20:14

Liability for what exactly? Liability under the Crimes Act is different to liability under (e.g.) defamation, privacy act, etc

[edit] as far as i am aware there is no distinction between commercial and non profit entities for any sort of publisher liability

nickb99

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Master Geek

#717919 15-Nov-2012 20:51

Well, for example I have seen some NZ forums where they very heavily censor users because they are concerned with defamation etc. I would be interested to know for example if any forum host got sued in NZ etc.

muso

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Geek

#717945 15-Nov-2012 21:08

Have a look here.

General rule, although not absolutely settled here, is that a publisher who has notice (or ought to realise) there is defamatory material and does not remove it can be liable (sometimes). As such a forum owner who moderates all posts takes more risk than a forum owner who allows free commenting without reviewing posts beforehand.

freitasm

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#718467 16-Nov-2012 20:20

muso: General rule, although not absolutely settled here, is that a publisher who has notice (or ought to realise) there is defamatory material and does not remove it can be liable (sometimes). As such a forum owner who moderates all posts takes more risk than a forum owner who allows free commenting without reviewing posts beforehand.

This is incorrect. In New Zealand a web site owner (blog, forum, news) is responsible regardless of moderation style.

This puts Geekzone (forum), Kiwiblog (blog) and Stuff (mainstream media) all in the same boat when it comes to liability.

I suggest the OP contact a lawyer for clarification.

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muso

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Geek

#718472 16-Nov-2012 20:27

freitasm:

This is incorrect. In New Zealand a web site owner (blog, forum, news) is responsible regardless of moderation style.

This is incorrect. A website owner needs at a bare minimum constructive knowledge before being liable for defamation. See paragraphs 46-49 of the case I linked above. Constructive knowledge will be more readily implied where moderation is strict although as far as I am aware no NZ case has held that particular point.

freitasm:

This puts Geekzone (forum), Kiwiblog (blog) and Stuff (mainstream media) all in the same boat when it comes to liability.

I suggest the OP contact a lawyer for clarification.

This is correct. All are in the same boat as no site listed reviews comments before they are posted. It is also correct that OP should consult a lawyer.

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#718475 16-Nov-2012 20:36

I was advised by our lawyers that regardless of moderation style the owner of a publication is responsible for what is published.

muso: All are in the same boat as no site listed reviews comments before they are posted.

The fact these sites do not review comments before they are posted doesn't mean they can not be held responsible.

This is quite different from the USA, where a publication is not responsible for comments posted by readers.

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muso

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Geek

#718491 16-Nov-2012 20:51

That is not my understanding.

(Disclaimer: What follows are general comments only - please do not rely on them as a substitute for legal advice. For all you know I am making this up.)

A publisher that has no knowledge (and can't fairly be said to ought to know) that defamatory material has been posted is not liable. It's the same reasoning that gives ISP a way out. Where a person moderates comments before they are posted, then the inference that they ought to know is easier to make (although, I would argue, not guaranteed).

From that case:

But it seems to me that there must be some action that amounts to a promotion of, or ratification of, the continuing presence of the defamatory material on the website.

The issue in the instant case is whether it can be said that the first defendant knew about the material on the website, occupied such a position vis a vis the website that it could have prevented the continued publication of the material and, by its inaction, associated itself with the publication in such a way that it apparently adopted or ratified the publication in the strict sense.

It follows that a site that reviews all comments before posting takes significantly more risk. There is still risk for sites that don't review comments, and as far as I know the point hasn't been finally decided. But I would take the above as starting authority for the proposition that an owner of an unmoderated board, where the owner or operator has been given no notice of any allegedly defamatory material (and wouldn't otherwise be expected to know) is not liable for defamation.

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#718495 16-Nov-2012 20:58

On the other hand, comments on a site such as this, Kiwiblog, or Stuff for that matter can cause liability because even though they are not "approved" before posting, they are moderated by the fact that they are allowed to remain visible.

From your quote

But it seems to me that there must be some action that amounts to a promotion of, or ratification of, the continuing presence of the defamatory material on the website.

The issue in the instant case is whether it can be said that the first defendant knew about the material on the website, occupied such a position vis a vis the website that it could have prevented the continued publication of the material and, by its inaction, associated itself with the publication in such a way that it apparently adopted or ratified the publication in the strict sense.

The problem is that even if a comment here in the forums is not "moderated" as in approved before publishing, it's "moderated" as in allowed to remain visible - even if by inaction of the owner, since it's impossible for us to read all posts when we have thousands of new posts every day.

See the conundrum?

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muso

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#718504 16-Nov-2012 21:10

Yes. You are correct in that the publisher can be held liable no matter what moderation style is used. For example, if I tell you about a defamatory post elsewhere on geekzone, and you fail to remove it, then you will be liable regardless of the moderation style. But if you didn't review the post before it appeared, and didn't know it was there, you would (probably) not be liable.

The question is really whether a website owner will be deemed to know about all posts as a matter of law (thus why I say that strict moderation is higher risk).

In Sadiq the court talks about the case Byrne v Dean. That was a case where someone had posted a defamatory poster at a golf club without the club's consent. The secretary saw it, and didn't take it down:

In that case, so far as the critical issue of the defendants’ intentions and state of mind were concerned, it would have been easy to infer the defendant endorsed or adopted the defamatory comments because the Court could be confident in its belief that the defendant actually knew that the publication had occurred.

The facts in Sadiq were that the defendant took over a debt collection website that displayed incorrect information about the plaintiff (i.e. it was not the original author or publisher). The court said:

It is not sufficient for the plaintiff to invoke a vague concept such as that the defendant took over the debt collecting 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.

I wouldn't completely rule out a higher court going the other way and deciding that, for example, an owner has constructive knowledge of all contents on its website - i.e. it is presumed to know of all content. But I think that is highly unlikely considering the jurisprudence developing overseas. With geekzone for example - it borders on absurd to suggest that Mauricio, because he is the owner, will be deemed to have read everything posted. But that is the point that hasn't been finally decided. Sadiq suggests no liability although you could interpret Byrne the other way.

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#718683 17-Nov-2012 11:32

From NBR today "Online defamation in NZ...":

In New Zealand, online providers should be even more careful, as they could be liable for defamation and not have the important innocent dissemination defence.

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muso

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#765227 18-Feb-2013 16:04

A recent case has (mostly) confirmed the above.

The case is here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/68.html

Stephen Price's comments here: http://www.medialawjournal.co.nz/?p=589

muso

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Geek

#803722 22-Apr-2013 14:31

This has now been confirmed in NZ in WISHART V MURRAY & ORS HC AK CIV-2012-404-001701 19 March 2013

As I read that case, a forum owner may be liable in NZ if he or she (1) knows of defamatory content and fails to remove it, or (2) doesn't know of the particular defamatory posting but ought to have known in the circumstances that defamatory postings being made on the board are "likely". The case was dealing specifically with facebook pages and the reasoning appears to be equally applicable to discussion forums.

The Court quotes from cases that talk about whether under the first head actual knowledge is necessary or whether something like negligent ignorance will qualify. I don't think the Court finally decides that particular point.

muso

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Geek

#1133430 22-Sep-2014 09:50

Update: The Murrays appealed the High Court decision, partially on the grounds that a host shouldn't be a publisher simply because they "ought" to know of the content.

The Court of Appeal agreed and has ruled that a facebook page host is not liable for defamatory content unless he or she actually knew of the defamatory content and failed to remove it.

The ruling is specifically limited to facebook page hosts, but the reasoning will be persuasive in similar cases.

Here is the decision: http://www.courtsofnz.govt.nz/cases/christopher-robert-murray-and-ors-v-ian-wishart/at_download/fileDecision

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#1133893 22-Sep-2014 16:52

It's good that common-sense has prevailed, a shame it took a court case and an appeal though.

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