Karam v Parker & or

• Jurisdiction: New Zealand
• Judge: COURTNEY J
• Judgment Date: 09 April 2014
• Neutral Citation: [2014] NZHC 737
• Docket Number: CIV-2010-404-003038
• Court: High Court
• Date: 09 April 2014

Between

Joseph Francis Karam

Plaintiff

and

Kent Parker

First Defendant

Victor Purkiss

Second Defendant

[2014] NZHC 737

Courtney J

CIV-2010-404-003038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Claim for compensatory and exemplary damages against the defendants for defamation — plaintiff sought damages of $1.25m against the first defendant and $500,000 against the second defendant — plaintiff supported David Bain through his appeal against conviction and retrial on charges of murdering his parents and three siblings — plaintiff claimed statements defamed him by conveying that he lacked integrity, was dishonest, was motivated to support Bain by the prospect of financial gain and had defrauded the Legal Services Agency — first defendant administered a Facebook page Called “Justice for Robin Bain” and created the Counterspin website — plaintiff sued first defendant in respect of comments that he had posted on the sites and also as the publisher of comments posted by third parties — second defendant was a contributor to the Facebook page, Counterspin and other sites — plaintiff sued him only in respect of comments he made — whether first defendant was the publisher of statements by third parties — whether first defendant had a defence under s21 Defamation Act 1992 (innocent dissemination) — whether plaintiff was entitled to damages

Appearances:

M P Reed QC and P A McKnight for Plaintiff

First Defendant in Person

Second Defendant no appearance

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 9 April 2014 at 4.30 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date.

Table of Contents
	Para No.
Introduction	[1]
Was Mr Parker the publisher of statements by third parties?	[7]
Section 21 — the relevant principles	[9]
Was Mr Parker a publisher of statements by third parties on the Facebook page?	[14]
Was Mr Parker the publisher of postson Counterspin	[20]
The meaning of statements — relevant principles	[24]
The meaning of the words — relevant principles	[26]
The defence of honest opinion — relevant principles The Facebook page	[30]
FB 2, 3 and 4 — the “too prejudicial” thread	[35]
FB 6A — “A misuse of Legal Aid?”	[40]
FB 9 and 10 — The “happily uninformed”	[42]
FB 11 — “why not petition for a third trial?”	[46]
FB 14 — “Relationships”	[49]
FB 15 — “Psychic”	[51]
FB 16 — “Men's bladders”	[53]
FB 20 — “Missed????”	[55]
FB 21 — “Our prickly Joe”	[57]
FB 22	[59]
FB 23	[61]
FB 24 “Karam speaking engagement”	[63]
FB 25 and 26	[65]
FB 27, 28 and 30 — “The Blind Tyranny of Belief”	[69]
FB 31	[74]
FB 38 — “Book Canned”	[76]
The Counterspin website
CS 4 and 6	[78]
CS 7	[81]
CS 8 — “conflicting evidence”	[83]
CS 9 — 11 — “how the not guilty verdict was obtained”	[85]
CS 13 — “create a following using personal charisma and influence”	[88]
CS 14, 16 and 17 — “13 years' promoting one point of view”	[91]
CS 19 — “muddied waters”	[93]
CS 20 — “Arthur Allan Thomas's 30th”	[95]
CS 21 — “Yahoo does it AGAIN”	[97]
CS 25 and 26 — “Karam gets 50 per cent of income from case???”	[99]
CS 36 — “muddied waters”	[102]
CS 39 and 41 — “the Court of public opinion P5”	[104]
CS 53 and 58 — “what is justice?”	[106]
CS 60 and 61 — “Joe Karam wears his defamation suit”	[109]
CS 65 and 66 — Posts following the “where's Joe's defamation suit now?” article	[111]
CS 67 — 70	[115]
CS 71	[121]
CS 72	[123]
CS 75	[127]
CS 83 and 84	[129]
CS 85	[132]
CS 86	[134]
CS 89 — 91	[136]
CS 92	[141]
CS 94	[144]
CS 96	[146]
CS 97	[148]
CS 98	[151]
CS 105 and 106	[153]
CS 107	[157]
CS 110 and 111	[161]
The other websites	[166]
Trade Me — “poof — another Bain thread bites the dust”	[167]
TM 2 — 5“Bainaholics anonymous”	[169]
TM 22 and 23	[180]
TM 27 — 30	[183]
TM 40	[188]
TM 41 and 42	[190]
TM 42	[193]
TM 43	[196]
YouTube	[198]
Were the statements made on occasions of qualified privilege?	[201]
Damages	[201]
My approach to fixing damages	[221]
Compensatory damages	[225]
Punitive damages	[244]
Injunction	[247]
Result	[248]

Introduction

1 The plaintiff in this case is Joseph Karam, who is well known for supporting David Bain through Mr Bain's appeal against conviction and retrial on charges of murdering his parents and three siblings. Mr Bain's acquittal at the 2009 retrial attracted numerous comments on social media sites. Mr Karam claims that many of the comments defamed him by conveying, among other things, that he lacked integrity, was dishonest, was motivated to support Mr Bain by the prospect of financial gain and had defrauded the Legal Services Agency (LSA). He seeks damages from two of those responsible for some of the comments and a permanent injunction prohibiting further publication of defamatory material.

2 The first defendant, Kent Parker, was an administrator of the Facebook page “Justice for Robin Bain” 1 and creator of the Counterspin website. Mr Karam has sued Mr Parker in respect of comments that Mr Parker himself posted on these sites and also as the publisher of comments posted by third parties. Mr Parker denied being the publisher of statements by third parties, relying on the defence of innocent dissemination under s 21 of the Defamation Act 1992.

3 The second defendant, Victor Purkiss, was a contributor to the Facebook page, Counterspin and other sites. Mr Karam has sued him only in respect of comments that he himself posted.

4 Both defendants pleaded the affirmative defences of honest opinion, 2 qualified privilege 3 and truth. 4 Mr Purkiss did not appear at the trial. Mr Parker was unrepresented at trial and abandoned the truth defence during the trial.

5 The issues for determination are:

• (a) Was Mr Parker the publisher of statements by third parties? If not, Mr Karam cannot succeed in relation to those statements and there will be no need to consider them further;

• (b) Did the comments published by the defendants relate to Mr Karam and have the defamatory meanings contended for?

• (c) Is the defence of honest opinion available in respect of any comments I find to be defamatory?

• (d) Is the defence of qualified privilege available?

• (e) What are the appropriate damages?

• (f) Should injunctive relief be granted?

6 Before addressing these issues I briefly describe the structure of this judgment. I consider the question of Mr Parker's status as a publisher first. Then I outline the principles relevant to whether the statements sued on are defamatory and whether the defence of honest opinion is available in respect of them. After that I consider each statement separately. Mr Reed QC, for Mr Karam, invited me to take a global approach to the statements complained of similar to that taken by in Korda Mentha v Siemer. 5 I have, however, felt obliged to consider each of the statements separately. This is because Mr Parker properly sought to place the various statements in the context of the ongoing dialogue of which the statements formed part. I then turn to consider the defences of qualified privilege. Finally, I consider the issue of damages and injunctive relief.

Was Mr Parker the publisher of statements by third parties?

7 The statements that are the subject of the Facebook page cause of action were made on various occasions between July and December 2009, though posts continued to be published at least up to the date of the proceedings being issued in 2010. The statements that are the subject of the proceedings on the Counterspin website were posted on various dates from July 2009 up to February 2010 but the

Counterspin website continued to attract postings after that. It was still live as at the date of trial

8 During the trial, following an apology to Mr Karam, Mr Parker advised that he intended to take down the Counterspin site, which he apparently did. However, after the trial Mr Reed advised that the site had gone live again. Mr Parker did not respond to that memorandum and I proceed on the basis that the site is still live.

Section 21 — the relevant principles

9 The claim against Mr Parker for statements by third parties rests on his status as administrator of the Facebook page and Counterspin site when the comments were posted. A person who takes part in or contributes to the publication of someone else's statement is, prima facie, liable as a publisher unless they can establish the defence of innocent dissemination. 6 This is a defence typically relied on by distributors such as booksellers who, although prima facie publishers of defamatory material they have distributed, neither knew nor ought to have known that thatm material contained defamatory statements. The general principle was stated by Lord Esher in Emmens v Pottle: 7

I agree that the defendants are prima facie liable. They have handed to other people a newspaper in which there is a libel on the plaintiff … The question is whether, as such disseminators, they published the libel? If they had known what was in the paper, whether they were paid for circulating or not, they would have published the libel and would have been liable for doing so. But here … the defendants did not know that the paper contained a libel. I am not prepared to say that it would be sufficient for them to show that they did not know of the particular libel … taking the view of the jury to be right that the defendants did not know that the paper was likely to contain a libel, and...