Defamation:contd.

Anonymous said...
You say that TradeMe can 'enjoin' posters. Does that mean make them personally liable for their posts? Aren't they already liable for their posts under the TM terms and conditions? Can they do this retrospectively, or would it be just for posts made after they were told they were being involved? And with defamation, you can go back two years, right? So does that mean all the posts from the time of the trial, too? Scary stuff!

August 19, 2010 10:31 AM

I think it has always been obvious that Trade Me can enjoin posters and this was often debated in the bad old days where defamation was rife on the TM boards, much the same as it is today. As I've written earlier, because various posters were not named as defendants (although they were named and their statements identified)I understand TM lawyers have applied to enjoin posters should they so decide. Yes, the posters are liable anyway under TM's T&C. But in a broader aspect they are liable despite whatever rules TM have in their T&C because they have chosen a public forum to make their claims, and that is the issue - they're their claims and no one elses. That being the case I still don't think TM can avoid their own liability as publisher, or co-publisher or host, simply by enjoining the posters, certainly though it might create some 'bargaining' toward a settlement. Any such bargaining would obviously be at the 'expense' of individual posters in some way financially.

I haven't the time to look it up at the moment, but the time limit might have only been six months within which to instigate proceedings, with a proviso that the defamation could be seen as continuing thereby stretching the period of time in which proceedings should be commenced. The issue of time means little in my opinion, particularly in this case, and I assume that the Courts would have to pay regard to defamation and the circumstances before upholding any time restrictions.

In the case of some 'famous' defamers, nina_s, obook, kalnovitch and others, are all 'double dippers' in that they have been constant defamers with some gaps in between. Even after apparently stopping they've repeated their behaviour. Another complicating factor for them is the defamatory material that has leaked from the hate-sites. Overall, being a member of a hate-site, supporter or associate might dispense with any need by the plaintiff to be time-constrained by virtue of being able to say this group (the hate-siters) have been defamatory for a period of (say) 2 years and which continues. I don't think a plaintiff would need to show much more than that to prove that it was continuing and by identifying statements the plaintiff alleges to be defamatory, said by who and when.

In terms of defamation being made somehow redundant by the idea that posters didn't know they were liable until they were told, or any other such retrospective claim - won't hold water for a second. They knew what they said, they knew they were responsible for what came out of their own mouths and that's where it ends.

Footnote:
6A) Subject to subsection (6B) of this section, a defamation action shall not be brought after the expiration of 2 years from the date on which the cause of action accrued

I apologise to anonymous above, the limitation is actually 2 years. Where I used the word 'continuing' above (meaning that defamation was ongoing for some time) I attribute 'continuing' as to being the same as 'cause of action accrued.' So yes, scary stuff for some.