Judgement offers clarification over internet defamation

The murky law surrounding defamation and the internet has become a little clearer after the release of a new judgement in a case involving a former Dunedin MP.

Health academics Douglas Sellman, Boyd Swinburn and Shane Bradbrook have sued Whale Oil blogger Cameron Slater, public relations consultant Carrick Graham, and  Food and Grocery Council chief executive Katherine Rich — a former Dunedin National list MP — for defamation, arising from a series of blog posts between 2009 and last year.

This week, High Court Judge Matthew Palmer issued his judgement on preliminary matters before trial, including a strike out claim by Mr Slater, Mr Graham and Ms Rich.

That application was denied, and the case is now able to move to trial.The judgement, while not binding, raised important issues concerning defamation and the internet, University of Canterbury media law expert Ursula Cheer said.

"It is a strong indication  he (the judge) is very clear and there is very strong reasoning behind it, but it is merely an indication of where at least one High Court judge thinks of where we should be," Prof Cheer said.

"That indicates that if any change was to come, it should be Parliament that should do that."

A key point in the strike out application was whether New Zealand law should follow a "single publication rule" — when a potentially defamatory statement was made, it was only made once, when it was published — or a "multiplepublication rule". Multiple publication means the words could be defamatory whenever someone saw them — a relevant difference when the internet allows words to be seen long after they were first published.

The distinction was relevant in this case as there is a time limit to bring a defamation action: the application for strike out argued — unsuccessfully — that the time limit had passed.

"I consider there are policy considerations which support the multiple publication rule applying to blog posts on the internet ... 

"In  a very real sense, posting a blog represents offering a continuing publication to the world," the judgement said.

Prof Cheer said the internet had placed pressure on the publication rule, and JUdge Palmer  had considered whether it should be changed.

"He comes down fairly firmly to say there are good reasons to keep the law of multiple publication, that is, to encourage responsibility for online blogging and that kind of publication.

"It is interesting that this appears to be a judge who is keen on the law influencing how social media is behaving to encourage responsibility in freedom of expression."

The judgement also offered some guidance on a question yet to be determined by New Zealand courts: whether a hyperlink to defamatory material could also be defamatory itself. Judge Palmer  has left the matter to be decided at trial, meaning in his view it was arguable they could be.

"I accept those hyperlinks, in the context of the text of the posts, mean that the later posts are sufficiently closely connected to those earlier posts as to amount to republication of them. That is an additional reason not to strike out those causes of action," the judgement said.

Prof Cheer said the judgement was interesting on this point as case law had been very unsure in the area.

"The indications have been if you have got very definite human intervention, not just mindlessly sticking a hyperlink in there, but some indication that someone is putting it here because they want you to look at it.

"This case is quite a strong example of that, because it is Slater hyperlinking to his own stuff.

"It’s not like the media talking about something and linking to someone else’s website."

No date has been set for the trial.

- Mike Houlahan

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