Defamation in a Facebook Age

The actions of Steve Stephens, the Cleveland Killer who posted a Facebook photo of himself shooting a total stranger illustrates one of the many dangers of Facebook. The Financial Times of London (22nd April) said that the Cleveland Killer did more than commit a horrific crime. “He also highlighted the complete failure of big technology groups to take responsibility for their role in spreading illegal, hateful and false content around the world”.

Outside of Europe, laws are tighter. In New Zealand, both case law and legislation provides guidance for Facebook content and the responsibilities of moderators. If you post something, which is considered harmful, defamatory, or patently untrue, is racist or constitutes hate speech, then you commit an offence and the Harmful Digital Communications Act 2015, provides legal remedy for those defamed or affected.

Additionally, case law in New Zealand has established that moderators or admins of social media sites are deemed publishers are responsible for all site content, whether they know of its existence or not.

A defamatory statement is one which falsely discredits or exposes to ridicule, a person, organisation, business or school. The rules of defamation apply to comments posted online as much as they do to those on the traditional printed page.

A recent example of case law in New Zealand was Ian Wishart vs Christopher Murray and others in March 2013. Mr Wishart wrote a book about the Kahui twins murders. Mr Murray established a Facebook page urging people to boycott the book. Mr Wishart subsequently sued Mr Murray and others for comments made on Twitter and Facebook. Many of the comments posted were by anonymous users. Mr Wishart argued that Mr Murray as the site moderator and publisher is liable for the content postings. Mr Murray sought to have Mr Wishart’s claim struck out on the basis that he didn’t write the offending postings.

Justice Courtney declined, ruling that Mr Murray was the ‘publisher’ and concluded:

“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 circumstance 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”.

The moderators of the Matipo Primary Facebook page are required to follow the legal requirements established by case law and the Harmful Digital Communications Act 2015. No comment, which is considered harmful, defamatory, patently untrue, is racist or constitutes hate speech, will be approved.

The same defamation procedures apply to Facebook comments as to traditional written comments. Case law in various countries including New Zealand has established that the moderators of social media sites are deemed publishers and are responsible for all site content.

Our moderators have been made aware of the intent of the Harmful Digital Communications Act 2015 and the New Zealand decision of Justice Courtney in ‘Wishart vs Murray’. For anyone else interested, we can make available copies of both.