The recent Judge Harvey decision about the length of time defamatory comment is left available to be viewed on the internet or elsewhere, being relevant to the amount of potential damage, is not new in the common law. That situation has been confirmed both in Australia and Italy, in one of those cases the issue was how long the comment had been allowed to 'rest' in public view before being removed, and whether its removal was timely. This analysis puts the culpability of Trade Me, Kent Parker and Vic Purkiss at the higher end for the following reasons.
TM left defamatory comment for extended periods of time after having first been warned a number of times and after concluding that they were not 'responsible,' plainly this aggravated the damage to Joe Karam's reputation. In all circumstances the publisher or publishers should err on the side of caution - for example saying 'while we don't believe the material is defamatory, or that we are the publisher we will remove it anyway.' That they did neither shall prove to be at their own considerable cost. But it goes further, their association with the hate-sites and which they were warned by letter about in November 2009. The association was plainly obvious and recorded. The relationship between the hate-sites and trade Me was and is transparent. This 'relationship,' while probably not deliberate on TM's part, however forms the test of 'err on the side of caution' and fails badly. Because the comment by nina_s, obook and others is clearly defamatory, their links to the hate-sites apparent to the point where mere 'caution' wasn't the issue as TM was deliberately being used in a manner that was and is defamatory harassment by a group of individuals organised to destroy the reputations of others (Jurors, witnesses etc.) And in fact went further than that and criminally stalked and harassed board members and others. No amount of head in the sand stuff can avoid that truth, it's all dutifully recorded not only in posts but also in correspondence. I would imagine investigators have been at work establishing the links between the networking hate-siters as well. I have no small amount of proof of their activities both in criminal behaviour and civil offence. Trade Me allowed it to continue by allowing the return of stalkers such as Annette Curran, Glenda OBrien, Christine Williams and a list that goes on and on supported by 'appearances' of these people in other identities as was the case with Glenda OBrien and nina_s, this all adds significantly to the damage done, and TM's inability or unwillingness to allow it to be done.
Switch now to mother duck and s for brains Vic. The same applies. But even more sinister information emerges. The stalking of the Jury with the knowledge of Vic and Kent, in fact with Vic, his involvement in the stalking - the proof provided by, yes - his very own words. Forays on to TM instigated by Vic. The serious stalking by kalnovitch, Golfergold, misspw, supersleuth and others the proof of which provided by - yes, themselves. So the Jury will see that it hasn't been just a few rash words said in the heat of the moment, but part of a criminal enterprise that has acted sub judiciously in a number of ways and illegally in a number of ways. These people's arses are going to be kicked ad infinitum and then they will pay with monetary recompense and hope to avoid prison. We have witnessed and continue to witness the 'dumb and dumber' of the cyber space world initiated by a bunch of half wit pedo supporters whose day is coming. This won't be a fight, it'll be a whitewash.
I have seen a change in trademe since they changed their rules. I suspect they had legal advice that leads them to believe the person that makes the defamatory statement will be responsible.
ReplyDeleteI'm not sure whether that is right or not. But, that Trademe has left these statements for all to see, can't be without reason.
Then we have votemenot, which has many many statements, preserved for anyone to view. Another site full of evidence.
An interesting aspect to Judge David Harvey's judgement, was referring to sites that require a login and membership. These are not immune from prosecution in his opinion, and neither they should be, the more members there are, the more the damage. It seems the right time to count, how many members of trademe are there?
How many facebook members? Counterspin members? Davidbain.freeforum members? I'm not much good at counting, but that seems like an awful lot of people exposed to these comments.
And Kentbaby thinks Joe is just being vexatious with his claim. In his dreams!
They might have had legal advice that the person responsible for the defamatory statement is liable and not TM. I have had conversations with them where they have made that claim, additionally that they are a 'small' message board and that it is not possible for them to have pre-edited moderation. None of that washes with me. To say that you might be publishing defamatory material that you cannot pre-monitor because you are a 'small' organisation is of no moment. The only thing of importance is the defamatory, damaging material that results. If they can't control it, then they shouldn't be publishing.
ReplyDeleteAs to legal advice that the boards are not the liability of TM I also feel that is nonsense. They have provided the blank page, been warned about the content, but continued, even should they wish to avoid liability they have inherited it anyway even if the first test of who the publisher is was passed. However, I don't believe they can even bridge the first test let alone the second.
The most they can do is use enjoined posters to mitigate their (TM's) liability to some degree. But they have a problem there as well because of the duration and nature of the defamatory material and where it arose from. TM in many ways are headless chooks.
The login and membership aspect actually heightens TM's liability because of the deliberate manner required for posts to arrive on their boards. If random posting was allowed their argument might have some weight. Each of those steps, membership and login represent a portal of control available to TM which they have ignored to the detriment of Joe, David and others, for that, they and their posters will pay.