-37the car. Unsurprisingly, some of the comments posted on the blog site were
extremely negative. Similarly, in Wishart v Murray,77 the defendants set up a
Facebook page campaigning for a newly published book to be boycotted and
casting serious aspersions against one of the authors. Unlike the hosts of a
discussion forum involving many thousands of discussion threads, the creators
of such a blog or Facebook page have a relatively narrow horizon to monitor
and, given that their express purpose is to mount a campaign critical of others,
they might reasonably be expected to exercise particular care in respect of
potentially defamatory comments posted at their invitation.
93.
The requirement of reasonable care is also relevant in cases
involving subsequently acquired knowledge. The forum provider may initially
satisfy the requirements of the innocent dissemination defence in terms of lack
of knowledge, etc, but may subsequently become aware of the relevant
defamatory content in circumstances where the defamatory article is still
available for distribution and where, before it can be removed, some further acts
of publication in fact occur. Thus, a magazine with an offending article may be
still available for purchase on the shelves of various shops operated by a firm of
newsvendors and some copies may be sold after the moment when the firm
acquires such knowledge. And in an internet context, an offending discussion
thread may still be accessible by forum users when the provider first learns of
its defamatory content, and “hits” accessing that content may occur before it can
be removed from the site.
How does such acquired knowledge affect the
innocent dissemination defence?
Are the newsvendors and the platform
provider in the examples just given excluded from the defence from the moment
that they become aware of the defamatory content?
77
[2013] NZHC 540.
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