We've recently seen Trade Me remove a thread started about Dr Peter Jansen suing an ACC client for calling him, tongue in cheek it would seem, an 'incompetent prick.' The thread still exists in entirety on Votemenot and meanwhile another new thread has been running for a week.
Being called an 'incompetent prick' in cyberspace as it exists at the moment wouldn't rate as extreme defamation because people get described as being all manner of pricks..stupid, silly, dumb pricks and so forth. At the other end of that are threads of note that TM allow to continue to run, most particularly those defaming Joe Karam and David Bain where both men are called names more damaging than prick and to this day have 'evidence' produced against them that is pure lies. Of course Karam is suing Trade Me over comments they have published and an issue in those proceedings, possibly the only issue, will be whether or not TM are a publisher.
To this point in all their literature they claim they're not publishers nor editors and say those roles lie with the individual posters and members of the TM community who can vote them off. That is despite that at the moment any Bain thread is unable to be voted off. If it is decided in Law, and it is a question of Law, that TM are a publisher I don't imagine they'll be able to do much other than settle, they cannot, and I doubt would try to, argue that David is guilty of murder (he's in fact been acquitted) and any arguments along those lines would see them taking total responsibility for the posts that they claim are published by other on their boards (how conveniently) and are not their responsibility. They foul this role by acting as moderators, often only on request, moderator being a modern term applicable to on line editing.
This week they've had another setback in their claim of being innocent bystanders while nasty people write defamatory remarks on their message board. John Marshall QC had been asked to examine what part the Ministry of Justice had played in the publication of suppressed details of victims on the Ministry's website. It transpires, according to John Marshall, that before anything was published on the Ministry website judgements were checked before being published to ensure they complied with suppression orders and statutory publications.
In effect this pre 'checking' was editing, to ensure no breaches of orders were published. Apparently of 10 cases identified as wrongfully published none had the required 'banner or flag at the top.' Mr Marshall said the Ministry, as the website publisher, had the responsibility to 'carefully read and check [the judgements] to ensure suppression requirements were complied with, whether or not there were flags.'
As some readers might be aware TM regularly publish suppressed material and there are records showing it can remain published on their board ad infinitum. But that is possibly less of a problem for TM than Mr Marshall's recognition, and the Government's acceptance that the Ministry is without doubt the publisher (no resistance from them on that point) and therefore responsible for what the publish.
For some time I've thought that TM's 'rules' are an attempt to indemnify themselves against responsibility for what happens on a message board that they both own and operate. Unfortunately for TM, Mr Marshall's view of internet publishing is both accepted precedent and practice and no company or individual in NZ can indemnify themselves against responsibility for illegal activity. Cases go back as far as the sixties and possibly beyond that prove it is accepted precedent that what one publishes they own, and defamatory comment can be the liability of the speaker and the publisher, with the publisher (probably) taking the greater responsibility for spreading the defamation to a wider audience. In effect the passage of time is showing that the printed word, whether manually printed in a printers shop, or electronically (as in cyberspace) is one and the same with the same rules applying. Not new rules set up by a profit making organisation with contempt for protocols and the rights of others but rules established under law and precedent. TM you are sunk, along with your hate-site nannies.
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