WISHART v MURRAY [2015] NZHC 3363, 22 December 2015.

This case concerned the continuation of a defamation claim that began several years ago.

Back in 2014 the Court of Appeal in Murray v Wishart held that a third party owner of a Facebook page is not liable as publisher of comments by others. The court rejected an ‘ought to have known’ test for an actual knowledge requirement.

In 2015, Mr Wishart sued Mr Murray as administrator of the page, Murray’s wife for posting on the Facebook page, and Mr Murray’s employers, Dimension Data New Zealand Ltd (DDNZ).

DDNZ applied to strike out the proceedings. It argued that the Court of Appeal’s judgment in Murray v Wishart clearly set out the limited ways in which a Facebook page host can be held liable for the comments of third parties. Therefore, DDNZ argued, in order for it to be liable there must be direct actions by DDNZ or its employees endorsing those comments in order for it to be liable for a publication. DDNZ further argued that the action was time barred and applied for it to be struck out.

Other issues for the court to determine included whether separate statements gave rise to a single cause of action and whether exemplary damages against DDNZ were appropriate.

The court held that according to ordinary defamation principles, one online comment would constitute a single cause of action. However, the court acknowledged the need for a pragmatic approach and one comment per action would be impractical and ‘unwieldy’.

Courtney J. rejected the argument that the Court of Appeal in Murray v Wishart set out the only way in which a Facebook host could be liable for comments on its page. The focus of the Court of Appeal’s decision was on whether a constructive or actual knowledge test was appropriate; the decision does not mean that liability could not arise in other ways. In particular, it does not follow that DDNZ can only be found liable on the narrow actual knowledge test.

While Courtney J. held that DDNZ cannot be directly liable as it was not the Facebook page host, this does not exclude it from being vicariously liable as Murray’s employer were Murray considered to be the publisher.

The judge held that the argument that DDNZ endorsed the defamation by reason of an employee’s hyperlink to the Facebook page from the company’s intranet was tenable.

The claim for exemplary damages against DDNZ for their alleged vicarious liability was struck out.