Joe Karam’s defamation case against two members of the Justice for Robin Bain group has been decided, with Mr Karam receiving $535,000 in damages, and with indemnity costs also awarded which have been estimated at $500,000. A copy of the judgment is here, thanks to Peter Aranyi at the Paepae.
The two defendants, Kent Parker and Victor Purkiss, principally relied on the defence of honest opinion. (They also relied on the defences of truth and qualified privilege, both of which were rejected, with Mr Parker accepting during the trial that he couldn’t prove any of the defamatory statements he’d made.) In relation to some of the defamatory statements made (a distinct minority), honest opinion defence was deemed applicable, but for the vast majority of the statements it wasn’t.
To my mind though, the way in which Courtney J has applied the threshold test under which honest opinion can be relied upon doesn’t necessarily take into account the way that blogs and social media sites function.
At paras 31 to 33 of her judgment, Courtney J sets out the legal principles relating to the defence of honest opinion, which can be paraphrased as follows:
- Firstly, the defendant must show that the publication was an expression of opinion rather than a statement of fact.
- Secondly, the comment must indicate, either expressly or implicitly, the facts on which the opinion is based.
- Thirdly, if the opinion is that of the defendant it must have been honestly held.
It’s the second point which raises possible issues for the blogosphere and social media. Justice Courtney’s full description of the law around that second point is as follows:
[32] Secondly, the comment must indicate, either expressly or implicitly, the facts on which the opinion is based. This is so the reader knows what the maker of the statement is commenting on and can make his or her own assessment. Thirdly, the facts on which the opinion is based must be shown to be true or not materially different from the truth or must be based on facts generally known at the time of publication. However, even if several facts are relied on, not all need to be proved to be true; one fact that supports the comment may be sufficient.
This is where the law kept coming back to bite Messrs Parker and Purkiss. Justice Courtney repeatedly found that isolated defamatory statements were made, in which there were no supporting facts relied upon. With no supporting facts, the defendants could not rely on the defence of honest opinion. And of course at least one of the supporting facts must actually be true.
A prime example is statements made by the defendants accusing Mr Karam of using the David Bain saga for personal profit. This was undoubtedly the honestly held opinion of the defendants, but because no facts were given to support that honest opinion, the defence of honest opinion failed.
Now, here’s where things get interesting. Scattered throughout the Court’s judgment are statements by the defendants relating to Mr Karam supposedly receiving 50% of any compensation package received by Mr Bain (I say “supposedly”, because Mr Karam gave evidence that although there had been a written agreement that he would receive 50% of any compensation given, that agreement was soon superseded by another agreement). That was obviously one of the ‘facts’ that the defendants were relying on when they accused Mr Karam being in it for personal gain, with the other ‘facts’ being the publication of various books by Mr Karam and his receipt of legal aid funds for research activities in relation to Mr Bain’s legal proceedings.
Of course, the ‘fact’ that Mr Karam would receive 50% of whatever compensation Mr Bain might receive was untrue. It therefore couldn’t be relied upon as a justification for honest opinion. But even if it had been true, many of the defamatory comments did not explicitly state that that was why their honest opinion existed. No factual basis was provided for the opinion, therefore the defence failed. Not just that, but that no factual basis was provided throughout the thread of comments, of which the individual comment was just one portion.
That’s where my problem with the judgment lies. In many cases, blogs and social media sites (such as Facebook) involve numerous individuals who post and comment regularly, and are known by their online ‘handles’ (sometimes even their real names!). Go to the Kiwiblog comments sections, for instance, and it doesn’t take long to become acquainted with the various viewpoints of many of the commentators. You know who the anti-semites are. You know who the homophobes are. You know who the environmentalists and various left-wingers are. On an individual post on a blog, commentators often don’t feel the need to refer back to facts that have been previously stated on other posts. Bloggers don’t necessarily refer back to previous blog posts when they comment further on an individual. It’s often assumed that the ‘facts’ are taken as previously read.
In the case of the website and Facebook page that were largely the subject of Mr Karam’s defamation action, the online community who contributed to the posted material were of a like mind. They obsessively despised Mr Bain and Mr Karam, and made that very clear throughout the website and Facebook page. They also seem to have assumed that, in each new post, they didn’t have to repeat the ‘facts’ that supposedly supported their attacks on Mr Karam.
What that means is that Courtney J, by looking at defamatory comments only within the context of the individual post that was being commented on, was able to find, time and again, that no factual basis for the opinion was supplied, therefore rendering the honest opinion defence obsolete. Putting the defamatory comment into the context of the whole site may have brought about a different result in relation to a significant portion of the defamatory material.
That’s why I’m slightly uncomfortable with the judgment. A comment on a blog post, when viewed in isolation or as part of the individual blog post and the thread of comments that follow, may not appear to have a factual basis. However, when viewed as part of a blogger or commentator’s history of blogging or commenting, may have a factual basis that is well known to others who frequent the blog.
That’s not to say that the defendants in Mr Karam’s defamation suit don’t richly deserve to have been found to have defamed Mr Karam. My concern is whether the case sets a precedent that doesn’t necessarily fit with the way that blogs and social media actually operate.
Occasionally Erudite Publications 
On a blog, as opposed to Facebook, it would be interesting to see if the use of tags on posts would influence the result in a similar situation. Since that would enable easy connection to the earlier information.
Good point – it’s possible. There would certainly be a viable argument that tags are a part of a blog post and are part of the full thread of comment that ensues, meaning that a factual basis (that has been set out in posts that are under the tag) is implicitly indicated.
Not sure whether it would be accepted by Courtney J, but it’s certainly arguable.
I think that one of the issues Courtney J would raise is that a huge number of utterly unrelated posts can all be filed under one tag, meaning that a factual basis isn’t readily identifiable by a reader. Whereas providing a link directly to another post provides a very easily identifiable factual basis (assuming of course that the factual basis is actually set out in the other post…).
Yeah, that makes sense. I think a combination of both would be the best way to protect yourself. Of course good taxonomic choices in your tags is also a good defence. So tags for anyone mentioned in the post, tags for the series if it is a series of posts, plus other things.
Jono: My comment, which is noted in part of the judgement, was not made in isolation. The way the judgement has been made is somewhat akin to a latecomer to a meeting not knowing what has previously been discussed. Why should someone who comes late to a meeting be completely briefed on what has gone before? To require that these things be reiterated at each point is not only onerous, it infringes on the right to free speech. If someone had asked, we would most certainly have clarified this for them. That is what the minutes of the meeting are for. If you want clarification of the whole business, then read through the screeds of previous comments. Given a transcript of the entire Justice for Robin Bain FB forum, I could easily show the factual basis of many of the comments which the judge found defamatory.
Note: I never participated in other forums, such as Counterspin or Trademe, so I won’t comment on those, other than to say that members of the Justice for Robin Bain forum have had threats made against them, and been defamed by members of the Trademe forum and on other blogs, and nothing has been done about that to this point.
Hi Gavin, thanks for your comment, which seems to corroborate the main thrust of my post – namely, that the Court should perhaps take a more “global” approach to ascertaining whether a factual basis for honest opinion exists, when the material is blog or social media related.
I’ve made the assumption in my blog that a factual basis for much of the material found to have been defamatory would have been set up throughout the Facebook site and website, with contributors knowing what had come before (and therefore not bothering with repetition of that content).
It’s not clear from the judgment whether Mr Parker argued that before the Court and it was rejected, or whether that argument wasn’t presented and the Court has then proceeded to simply analyse each allegedly defamatory statement in isolation.
This is a very sad week for freedom of speech in this country.
I know people who have had much worse things said about them and would never dream of taking their “defamer” to court.
These men were motivated by the desire to defend a dead man, whose reputation has been dragged through the mud.
Apparently it is ok in this country to call a deceased person a mass-murderer and abuser of his daughter, but not for others to defend him.
Without the very real risk of being taken to court and sued for millions.
We shall all be walking on eggshells from now on.
Great analysis on the law of defamation. I think the law needs statutory revising if judge made law such as this is to persist. Would the consequences be so terrible if the law of defamation was limited only to erroneous and harmful assertions of fact? I scanned the decision, and from what I saw the “defamatory comments” didn’t really assert much fact at all. They just expressed opinion that Mr Karam is dishonest. Isn’t it fair to hold and express this opinion, given that it is more likely than not that Mr Bain did murder his whole family?
Hi George, thanks for taking the time to comment.
You ask, “Would the consequences be so terrible if the law of defamation was limited only to erroneous and harmful assertions of fact?” However, is there really any difference between someone saying, “Mr Karam defrauded the Legal Services Agency” (that, of course, was one of the allegations made by the defendants in the Karam case) and someone saying, “It’s my opinion that Mr Karam defrauded the Legal Services Agency”? One is a statement of fact, while one is a statement of opinion, but both are harmful to Mr Karam’s reputation.
Under the current law, the defence of honest opinion requires you to establish a factual basis for the opinion. Is that such a bad thing?
The main issue I have with the Karam decision is that a factual basis for a number of the defamatory comments *was* established, but as part of an ongoing series of posts and commentary, rather than within the individual post that the defamatory comment was made. The factual basis for the defamatory comments was therefore readily obvious to regular readers of the offending FB page and website, but was held not to exist by the Judge.
J
Thanks for the reply. I agree with your analysis and feel that if this had been presented to Courteney J the costs may have been dramatically reduced. I guess my problem is with the law of defamation in general.
This case really riled me as it could lead to legitimate opinions being suppressed in the future, ultimately to the detriment of society. Applying Courteney J’s reasoning, if 3 years ago I stated “It is my opinion that David Ross might be running a ponsy scheme” he could have sued me for millions potentially. Terry Serepisos was another individual. Many in Wellington believed that he was running a shifty business but were prevented from speaking out for fear of the repercussions.
Defamation law seems to have been spun on its head. Its original purpose was to protect the little dog from having unfounded accusations flung at him. For example, a local butcher alleged of having unsanitary food practices by a wealthy individual / company. Very difficult for the little butcher to re-establish his reputation in that instance. Now, it is the big dog stifling the opinion of the little dog. I don’t think we really need to worry about the big dog throwing unfounded accusations at the little dog, simply because there is too much to lose for the big dog if the accusations turned out to be false (society would be less inclined to support the individual / company = lost profits).
How are we to hold dodgy individuals to account if we cannot freely express our opinions? Id be interested in your philosophical take on the law of defamation in general.
You raise a really significant issue there, George – that the cost of prosecuting or defending a defamation suit is often huge, and that’s not an issue that’s limited only to defamation. The Courts are at risk of becoming available only to the Colin Craig’s of this world. Unless you represent yourself, of course – and as the defendants in the Karam case discovered, failing to present a utterly robust defence to a defamation suit can have somewhat expensive consequences…
Your examples are interesting. My first thought was, “Well, if you have a factual basis for accusing David Ross or Terry Serepisos of dodgy dealings, then all’s well and good – you’ve got a defence. Otherwise, it’s defamatory, and they’d be entitled to sue.” But my second thought was to agree that defamation law certainly does have the ability to stifle opinion – those with deep pockets can easily destroy someone with very shallow pockets, regardless of whether they’d have a valid defence.
That’s the problem with a system that combines long time-frames to get something to trial, and huge expenses at every step – the average punter is simply not going to be able to afford to hire a lawyer to defend themselves against a defamation suit or to take a defamation suit of their own. Yes, they may succeed and get damages and/or costs, but can they afford to hold out long enough to get to that point?
You ask how are we to hold those dodgy individuals to account if we can’t freely express our opinions? Good question, one to which I really don’t know the answer. Our system is flawed, but I can’t think of an alternative that would be better.
When things get before the judges (which doesn’t often happen – most cases settle long before that stage), the right decisions tend to get made (excepting my disquiet as the way the Court is now applying defamation law to social media). The improvements, in my opinion, need to be made to Court procedure – ie. the cost of putting together documentation and reducing the time it takes to get something to trial.
Beyond that, a possible solution might be to create a defamation version of the Disputes Tribunal, where the less serious defamation suits can be fought without lawyers.
My philosophical take on the law of defamation in general? Fairly simple – defamation is a harm, and the law exists to remedy that harm. The defences of truth and honest opinion are codified to protect our right to freedom of expression, which is as it should be. But as I’ve said above, the (expensive) process tends to get in the way of principle.
Not sure whether that goes particularly far to answering your questions, but I hope it’s a start!