Man sues on net comments

By MICHAEL FOREMAN

The defendant in the first online defamation case to go to trial in New Zealand said yesterday that the use of coarse language was standard procedure in internet discussion groups.

Manawatu Internet Services owner Alan Brown was appearing in his own defence in the Palmerston North District Court.

In a landmark case on internet defamation, he is being sued by former chief executive officer of internet registry Domainz, Patrick O'Brien.

Mr O'Brien is seeking general damages of $85,000 and punitive damages of $55,000 on the basis that postings made on the nz.org.isocnz newsgroup and mailing list were defamatory.

His lawyer Peter McKnight said Mr Brown had posted a message on the newsgroup defaming Mr OBrien on 23 December 1999.

The message began, "I wonder how long it will take Patrick to start wasting more Domainz and ISOCNZ money by again threatening baseless legal action in order to gag public criticism."

Mr Brown's message then suggested that Mr O'Brien "look up the law books on the subject of 'barratry'," adding, "As far I'm aware it's still a criminal offence and your continued threats against people who criticise you publicly come under that definition."

Mr Brown had then asked why the Internet Society of New Zealand (ISOCNZ), which owns Domainz, continued to employ "this buffoon" as its chief executive.

"He's proved time and time again that all he's interested in himself and not the welfare of the Internet in New Zealand."

Mr O'Brien said the message had been sent to approximately 170 members of ISOCNZ, but it could also be read on the world wide web using any search engine, and it had been read by his friends and colleagues.

His solicitors Izard Weston had written to the defendant on 14 February 2000, inviting him to publish a correction and an apology with the promise that, if he agreed, the matter would proceed no further.

Instead, on 15 February 2000, Mr Brown had posted a further message calling for Mr O'Brien to be sacked, saying he was "unfit to be the CEO of the company with monopoly over .nz namespace."

Further postings until September 2000 included the statement that Mr O'Brien was a "lying bag of shit" and a "petty-minded bereaucrat [sic] more concerned with covering his own arse than the welfare of the internet in New Zealand."

Mr Brown said comments on internet discussions groups ranged from the informal to the language of the rugby clubroom.

While cross-examining Mr O'Brien, Mr Brown said that stronger messages critical of the plaintiff had been posted on the newsgroup and asked why they were not being sued.

Mr O'Brien said he had not started other actions while this one was in progress.

Judge Gregory Ross said the plaintiff had the right to choose who he sued.

Mr Brown said he had used a "standard language and tone" for postings to the newsgroup and described the lawsuit as "a gagging action to quell increasing public criticism of the Domainz name server system."

Mr McKnight said Mr Brown seemed to be putting forward a defence of qualified privilege, in that communication by email or through the internet were of their nature privileged, and that there should be a special classification to allow full and frank discussion.

"My submission to you, sir," he told Judge Ross, "is that there is no precedent that suggests the internet is any different to any other medium."

Mr Brown said the case should never have been brought as it had taken statements out of their context and the litigitation had brought more attention to them than would otherwise have been the case.

Judge Ross reserved his decision.