LANDMARK FACEBOOK DEFAMATION CASE HAS ENDED, CLARIFIES LAW ON SOCIAL MEDIA USE
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.
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.
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.
“This has been a really important case, because it actually touches the lives of every New Zealander who uses Facebook or online blogs or chat forums. It has established four simple rules to control online behaviour.
“First, if someone says something about you online that is false and damaging, you can ask them to remove it and if they don’t you can sue them.
“Secondly, one of the most important findings is that the moderators of a Facebook page can be liable if they don’t remove damaging comments made by other people on the page, so the court rulings give people a central point of contact. Find out who the admins on the page are, and ask them to remove the false comments. If they don’t, they could personally be in the gun.
“Thirdly, the courts have ruled that if someone makes a false defamatory statement in a forum where it is likely to be repeated, that person can be liable for all the damage of those repetitions.
“Fourthly, and finally, if you see someone else making a damaging comment about someone online, and you join in and ‘like’ their comment, you could become liable for endorsing it and helping spread the defamation so think carefully before you join in and attach your name to it. What seemed like a good idea in the heated forums of cyberspace could become very expensive in the cold hard light of day.”
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.
The apology from the Murrays follows:
In 2011 we heard about a book Ian Wishart was planning to publish on the Kahui case, called Breaking Silence.
We didn’t know what was in the book, but we established a Facebook page urging people to boycott the book, its author Ian Wishart, his other books and any bookshops that stocked Breaking Silence.
The boycott page suggested the mother of the Kahui twins, Macsyna King, had been paid by Ian Wishart for her story.
The allegations and the boycott message spread like wildfire on social media and lit a fire we didn’t appreciate at the time.
However, we got our facts wrong. Ian Wishart had not paid Macsyna King, and she had not asked for any payment. Additionally, the coroner confirmed what Ian had written in Breaking Silence that Ms King was not the killer after all.
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 litigation over this matter has clarified the law over social media posts, and we hope some good comes from that. Today we have reached a confidential settlement with Ian Wishart and the litigation has ended.
Both ourselves and the Wisharts are passionate about the child abuse problem and also the dangers of social media.
Heidi and Ian, we are genuinely sorry
Chris and Kerri Murray
READ LEGAL COMMENTARY ON CASE HERE: