Should We Shoot the Messenger?: the New Zealand Direction on the Liability of Internet Service Providers for Third Party Defamation

Abstract

The liability of ISPs for defamatory content posted on their websites has been the subject of debate in many jurisdictions. With deep pockets and the ability to remove user content quickly, ISPs have been the first point of call for many claimants seeking swift redress. New Zealand case law in this area is not well developed, and has been further confused by the conflicting direction of case law in the English Jurisdiction. This paper suggests a reconsideration of ISP liability in New Zealand with legislative clarification. It is the opinion of this author that the situation is best clarified by ISP immunity, subject to the powers of a Communications Tribunal. This solution strikes the correct balance between legal certainty, promotion of freedom of expression on the internet, and effective justice for victims of defamatory content.