Murray v Wishart [2014] 3 NZLR 722, [2014] NZCA 461

(1) Wishart (Respondent) was the author of a book about Macsyna King. Wishart sought damages for defamation arising from comments by Murray made on a Facebook page established by Murray called "Boycott the Macsyna King book"; Murray's Twitter account (linked to Facebook page); and during radio interviews.  

(2) An application to strike out was made in part on the basis Murray was not the publisher of third party statements on the Facebook page. Issues included whether HC Judge was correct in finding there was an arguable case that Murray was a publisher of third party statements on the webpage.

(3) Court of Appeal differed from view of HC Judge in central aspect of reasoning based on Emmens v Pottle (1885) 16 QBD 354. Emmens was not authority for the proposition that a person may be found to have published a defamatory statement on the ground that they ought to have known of its existence. Existing case law was of limited assistance: it is important to focus on the particular factual situation before the Court. The host's action, allegedly amounting to infringement by the setting up of the Facebook page, was more closely analogous to the notice on wall situation in Byrne v Dean 1937 1 KB 818. Byrne v Deane, however, was distinguished in other respects. CA expressed concerns regarding applying the "ought to know" test to the host of a Facebook page. The actual knowledge test is consistent with Sadiq v Baycorp (NZ) (see below), A v Google New Zealand Ltd (see below) and Davison v Habeeb 2011 EWHC 3031 (QB), and conformed with the approach in Byrne v Deane and Urbanchich v Drummoyne Municipal Council 1991 Aust Torts Reports 81. The liability risk of a Facebook page host was no greater than that of an organiser of a public meeting.

(4) HELD:  Actual knowledge test should be the only test to determine whether a Facebook page host was a publisher - present pleading in respect of third party comments did not meet requirements of actual knowledge test - respondent permitted to re-plead claim