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:
 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.