(1) The plaintiff, Sadiq, issued defamation and negligence proceedings against two parties, arising out of allegedly defamatory statements published on a credit reporting website. The issue for determination was whether the first defendant, Baycorp (NZ) Ltd (Baycorp), published that material. Baycorp sought summary judgment on the basis it had not published the material. The alleged facts said that another party, Baycorp Advantage Collection Services (New Zealand) Ltd (BACS), had posted the defamatory material on the website, prior to that company (and its website) being acquired by Baycorp. Sadiq argued Baycorp had the means to, and should have, removed the material from the website after it had purchased BACS.
(2) HELD: The reasoning in Byrne and Urbanchich applied to online publication, and a defendant could not be taken to have assumed responsibility for defamatory material placed on its website by the previous owner of that website unless it knew about the material. "... there must be some action that amounts to a promotion of, or ratification of, the continuing presence of the defamatory material on the website". On the facts, summary judgment was denied, because it was arguable that Baycorp had determined whether such defamatory statements were to remain on the website or be removed. The Court applied the following test for determining liability: (ii) Did Baycorp have knowledge of the defamatory statement? (ii) Did Baycorp have the ability to end the publication of the defamatory statement? (iii) Was Baycorp unwilling to end that publication thus allying itself with the defamatory statement? If yes to all three, Baycorp would be liable.
Topic, claim, or defense
Defamation or Personality Rights
Lowest Domestic Court
Type of service provider
Host (Including Social Networks)
Trigger for OSP obligations
OSP obligation considered
Block or Remove
Type of law
General effect on immunity
General intermediary liability model
Takedown/Act Upon Knowledge (Includes Notice and Takedown)