Defamation law reaches deep into cyberspace

By MICHAEL FOREMAN

Cyberspace gives individuals no special immunity from New Zealand's defamation laws, and internet service providers may be liable if they publish defamatory information.

Those are the main conclusions drawn by Judge Gregory Ross in New Zealand's first internet defamation case, Patrick O'Brien v Alan Brown.

The judgment, delivered on Friday afternoon, awarded the former chief executive of internet registry Domainz $42,000 in damages.

The case, which involved defamatory remarks about Mr O'Brien made on an internet newsgroup, an email mailing list and a website, was heard at Palmerston North District Court on May 3.

In his judgment, Judge Ross said the defendant, Mr Brown, had failed to prove his claims about Mr O'Brien were true.

These included that the plaintiff had used Domainz money for private gain, had threatened to gag public criticism, had committed a criminal offence, was a "buffoon", should not be employed by Domainz as its chief executive, was self-interested and did not have the interests of Domainz as a priority.

Mr Brown had also failed to show his statements were honest opinion as no effort had been made to distinguish between opinion and fact.

Judge Ross said that while one of Mr Brown's key motivations was financial, in that Domainz' fee charging structure left his company open to unrecoverable debt, he also criticised other aspects of Domainz' operation.

"His belief system in this regard seemed deeply and strongly held - something of a religion to him - and it is fair to say, looking at the other evidence he called, that he was not alone in his views," the judge said.

"However the distinction between himself and others was that Mr Brown gave vent to those views in the manner described."

These were far more by way of personal attack and assertion than any amount of honest opinion and fair comment on the basis of informed argument.

Mr Brown had been given the opportunity to apologise and retract but he had issued further defamatory remarks.

Judge Ross said Mr Brown had appeared to argue that a special quality of freedom of communication applied to cyberspace protecting people from defamation actions.

"If I understood him correctly the publication procedures he adopted in this case facilitated a trading of insults in a robust manner, which was part of the culture of the internet."

But the defendant was "greatly mistaken" if he thought he was entitled to greater freedom of expression on the internet.

"I must say I know of no forum in which an individual citizen has the freedom to say what he likes and in any manner he wishes about another individual citizen with immunity from suit for all consequences."

Merely because the publication was being made to cyberspace did not alter this.

Judge Ross also said he was not aware of any precedent suggesting internet material derived protection from action in the tort of defamation.

Defamation laws had already been applied to magazines that pointed to defamatory material on websites and, while it did not arise in this case, the position of an ISP in its role of dissemination of information was a "more pertinent argument".

Mr Brown, who defended himself, said yesterday he stood by his original comments and would appeal if he could find someone to finance him.

"At the moment I've got a net worth of about $500. If I could afford $42,000, then I could have afforded a lawyer."