144 Mr Murray learned of the impending publication of the book and established a
Facebook page called “Boycott the … King book”. On that Facebook page he
posted comments criticising Mr Wishart and Ms King, as did numerous other
people. Many of the comments were defamatory, or, relevantly, allegedly so.
145 The Statement of Claim that was issued sought, in what became the fifth cause
of action, to sue for damages against Mr Murray (and the webpage host) for
comments made in third-party statements by persons posting onto the
webpage. It was this fifth cause of action, or the comments thereon by the New
Zealand Court of Appeal, that is relevant for the present proceedings.
146 There are two relevant aspects of the reasons for judgment in Murray v
Wishart, which it is necessary to discuss. First, it is necessary to discuss how
the Facebook page, which was the subject of the proceedings in Murray v
Wishart, operated.
147 It is clear, or seems clear, from the contents of the reasons for judgment at [86]
and following, that the Facebook page with which the New Zealand Court of
Appeal was concerned was a “private [individual] Facebook page”; and not a
“public Facebook page”, like the defendants in these proceedings published.
Part of the affidavit upon which the Court of Appeal relied, being the affidavit of
Mr Murray, referred to his Facebook page as an “individual Facebook page”,
over which the creator is unable to exercise meaningful editorial control, except
as to comments posted by the creator herself or himself.
148 The affidavit also states (recited at [86] of the reasons for judgment), that there
is no function on Facebook by which “a site creator can vet comments before
they are published”. Once aware of the comments published, the creator or
administrator can retrospectively remove individual comments and block
specific Facebook users.
149 Apparently, Mr Murray, while not able to vet, or control in advance, any
comments that may have been posted by third-party users, did monitor the site
and took frequent and active steps to remove postings that he considered
defamatory or otherwise inappropriate. He also blocked particular individuals
whose views he considered unacceptable.