Online defamation case law progresses: you can get in trouble too

Ian Wishart of Investigate Magazine fame writes

A groundbreaking Facebook defamation case that’s changed the law around what you can say online has finally come to an end after a six year court battle, with a plea from both sides for people to “scale back” abusive behaviour.

Journalist and author Ian Wishart sued IT expert Chris Murray and his wife Kerri, and Chris Murray’s employer, Dimension Data NZ Ltd, for more than a million dollars in damages and interest over a Facebook page Murray set up in June 2011 to boycott Wishart’s book “Breaking Silence” on the Kahui twins child abuse case.

That book, and all other Wishart published books.  Which wasn’t smart.

The case, which has reached an out of court settlement, has made it easier for people to get damaging and false comments about them on Facebook, Twitter or other websites taken down, and affects anyone using social media.

“There’s a huge amount of anger that bubbles beneath the surface on social media,” Wishart said today, “and the irony is that child abuse is often a consequence of anger as well. We need to scale back our quick tempers as a society.”

His words were echoed by Chris and Kerri Murray, who apologised for lighting a “fire”: “Both ourselves and the Wisharts are passionate about the child abuse problem and also the dangers of social media. Unfortunately our social media campaign based on wrong information caused immense damage to Ian Wishart’s reputation and his family. We would like to offer our sincere and heartfelt apologies to Ian and Heidi Wishart for the harm that was caused.”

The key findings in the “Breaking Silence” book were later upheld by the Coroner’s verdict on the case and the book was praised by critics, but not before the Murrays’ boycott page had been viewed four million times, racked up 50,000 likes and forced the refusal by two large bookstore chains to stock Breaking Silence after people began threatening to burn down shops that carried it.

Whoops.

Wishart alleged the boycott, which dominated news headlines for weeks, was based on false and defamatory information, and created a needless public backlash.

His lawsuit has become a major international test case on social media defamation, after generating three High Court rulings and a Court of Appeal judgement that have been used as precedents not just in NZ but Australia, Hong Kong and Canada. The case is also taught in law schools, and has been referred to as this country’s “leading case on social media liability” by defamation lawyer and blogger Ali Romanos.

The courts ruled in Wishart v Murray that people can be sued for false defamatory comments they make or which they allow others to make on their Facebook or other social media pages, once they’ve been warned that the comments are defamatory and they fail to remove them.

Now, a confidential settlement has been finalised between the parties and the Murrays have issued an apology to Ian and Heidi Wishart for the damage caused.

Wishart said today he was pleased with the outcome.

The crux of the problem was listed in court documents as follows:  (she = Macsyna King)

Wishart comments

The first ruling in the court case, back in 2013, was one of the motivating factors behind the 2015 Harmful Digital Communications Act, which provides safe harbour for online hosts from defamation provided they take down damaging content once it has been brought to their attention. However, the court rulings in Wishart v Murray set out the legal position if issues are not dealt with promptly. The HDCA does not provide protection to individuals who post their own defamatory comments.

In short, anyone, not just bloggers, can be held accountable.  This includes people that comment on blogs.   Although I’m not as hopeful as Ian Wishart that things will be less “angry” on the Internet, I will at least counsel my own readers to think twice before you commit your statements to the public.

Colin Craig took Mrs Stiekema to court for defamation.  The statement that did it was (paraphrased) that Mr Craig was the most dishonest person Mrs Stiekema had encountered in her life.

There is a huge chasm between calling for a boycott on a person’s livelihood and making a personal statement about someone built on direct experience, but as we’ve seen, depending on the litigants, you can find yourself having to sell your home just to settle and avoid court.

Be smart.   Do not write anything on the Internet, anywhere, that you would not pay to have printed on the front page of the local paper with your name and photograph under it.

 

Ian Wishart


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As much at home writing editorials as being the subject of them, Cam has won awards, including the Canon Media Award for his work on the Len Brown/Bevan Chuang story. When he’s not creating the news, he tends to be in it, with protagonists using the courts, media and social media to deliver financial as well as death threats.

They say that news is something that someone, somewhere, wants kept quiet. Cam Slater doesn’t do quiet and, as a result, he is a polarising, controversial but highly effective journalist who takes no prisoners.

He is fearless in his pursuit of a story.

Love him or loathe him, you can’t ignore him.

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