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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 21603
Experience:  37 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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I want to know whether the situation I describe below is worth

Customer Question

I want to know whether the situation I describe below is worth a legal suit for defamation and damages against the authors of the website Lauda Finem - a small Australian-based site running out of Sydney. The principal victim is also based in Australia.

This website is in bitter dispute with another website - ACCForum, based in NZ. It is trying to personally attack ACCForum's administrator who has a similar name to the principal. The principal has nothing to do with ACCForum. Yet Lauda Finem continues its defamation having been advised of that - because it suits it to attack not only the ACCForum administrator but his wider family. The principal and the administrator happen to be cousins.

The principal is a senior executive in a regional Australian health service. Lauda Finem has made it plain its campaign against him has, as one of its objectives, making sure he becomes unemployable. If a major media outlet did as Lauda Finem has done, the damages would be massive. But Lauda Finem is a small website with little traffic. The major outcome of its campaign is the presence of its scurrilous material in internet search engines. Google has, at my request, already agreed to remove several links from its database. But new material keeps coming and there are, anyway, many other search engines that can retrieve the objectionable material.

The issue is whether any remedy in law would justify the expense. At the moment, the principal still occupies his job with the full support of his employer. But, if he chose to advance himself further in positions in perhaps other countries, the potential is only for negative outcomes with this so-called "information" floating around on the internet.

Your advice?
Submitted: 3 years ago.
Category: New Zealand Law
Expert:  Chris The Lawyer replied 3 years ago.

christhelawyer : HiWelcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
christhelawyer : The problem with defamation cases is the extreme cost. If defamatory material has been published then certainly this can be attacked in a proceeding based on defamation and orders seeking removal.
christhelawyer : I have had a quick look at these sites, and they certainly can be described as a fairly robust exchange of views.
christhelawyer : If there has been defamation, then you can bring a claim, although this would need to be in Australia because that is the home of the site and the authors.
christhelawyer : The real issue is that when there are extreme views on a site they often spread these widely and can easily move the site somewhere else.
christhelawyer : But I do understand your point about this material being difficult if the person wants to work overseas and for that pulse bringing a case will at least enable you to show the result to balance the other material.
JACUSTOMER-c7mj82wm- :

What you seem to be saying is that the best - and most cost-effective - approach is to root the links from search engines.

christhelawyer : That would be the most effective, but you would need a court order to persuade Google usually
JACUSTOMER-c7mj82wm- :

What does "expensive" mean?

JACUSTOMER-c7mj82wm- :

Google has already done it. Based on rational argument. I imagine it will do it again with the same incentive.

JACUSTOMER-c7mj82wm- :

But there are many other search engines it does not control.

JACUSTOMER-c7mj82wm- :

Court order sounds a bit likely. What would it take to get one against all search engine proprietors and against the website host, Wordpress?

christhelawyer : That is where it can be tricky. It would have to be directed at the ISP provider for the website we here this was hosted, who may not even be in New Zealand or Australia. So the order may not be effective in that case.
christhelawyer : Expensive means start at $10,000, but beyond that it can easily reach very much more depending on the degree of opposition.
JACUSTOMER-c7mj82wm- :

Surely it is possible to get court orders in other jurisdictions?

christhelawyer : Yes, and more lawyers bills too however
JACUSTOMER-c7mj82wm- :

The defamation is clearly egregious. It has no basis in fact. It is a deliberately mistaken identity it suits Lauda Finem to perpetuate for its own ends.

JACUSTOMER-c7mj82wm- :

So my best option is to set up my own website attacking fire with fire?

christhelawyer : I don't recommend that because it would just spread the material even more widely. But it would enable you to answer this.
JACUSTOMER-c7mj82wm- :

Answer what?

JACUSTOMER-c7mj82wm- :

Oh, I see. A dispassionate rebuttal.

JACUSTOMER-c7mj82wm- :

Bit lame, don't you think?

christhelawyer : Sometimes these sorts of allegations are so wild that a dignified silence is best in my view. The best alternative is a the factual response, if you do not want to be silent.
JACUSTOMER-c7mj82wm- :

That's what I have given Google. Which did not need an additional court order.

JACUSTOMER-c7mj82wm- :

But Lauda Finem does not publish "factual responses". It does not suit it.

christhelawyer : different search engines have different practices, and certainly ask for the material to be removed. You may want to ask their ISP provider and complain to them
JACUSTOMER-c7mj82wm- :

Wordpress (the ISP provider) is as dodgy as they are. It does nothing. It is even willing to violate its own TOS in order to do nothing.

christhelawyer : There are plenty on the internet who are strong freedom of speech advocates, even in situations like this.

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