IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-003038[2014] NZHC 737BETWEENJOSEPH FRANCIS KARAMPlaintiffANDKENT PARKERFirst DefendantVICTOR PURKISSSecond DefendantHearing:14-18, 21 October 2013Appearances:M P Reed QC for PlaintiffFirst Defendant in PersonSecond Defendant no appearanceJudgment:9 April2014JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 9 April2014 at 4.30 pmpursuant toR 11.5 of the High Court RulesRegistrar I Deputy RegistrarDate.............................. .KARAM v PARKER& OR [2014] NZHC 737 [9Apri12014]Table of ContentsPara No.IntroductionWas Mr Parker the publisher of statements by third parties?Section 21- the relevant principlesWas Mr Parker a publisher ofstatements by third parties on theFacebookpage?Was Mr Parker the publisher ofposts on CounterspinThe meaning of statements- relevant principlesThe meaning of the words- relevant principlesThe defence of honest opinion- relevant principlesThe Facebook pageFB 2, 3 and 4- the "too prejudicial" threadFB 6A- "A misuse ofLegal Aid?"FB 9 and 10- The "happily uninformed"FB 11- "why not petition for a third trial?"FB 14- "Relationships"FB 15- "Psychic"FB 16- "Mens bladders"FB 20- "Missed????"FB 21- "Our prickly Joe"[1][7][9][14][20][24][26][30][35][40][42][46][49][51][53][55][57]nn~~FB 23FB 24 "Karam speaking engagement"[61][63]nll~26FB 27, 28 and 30- "The Blind Tyranny ofBelief"n31FB 38- "Book Canned"The Counterspin websiteCS 4 and 6cs 7CS 8- "conflicting evidence"CS 9-11- "how the not guilty verdict was obtained"CS 13- "create a following using personal charisma and influence"CS 14, 16 and 17- "13 years 'promoting one point of view"CS 19- "muddied waters"CS 20- "Arthur Allan Thomas s 30111 "CS 21- "Yahoo does it AGAIN"CS 25 and 26- "Karam gets 50 per cent of income fi"om case???"CS 36- "muddied waters"CS 39 and 41- "the Court ofpublic opinion P5"CS 53 and 58- "what is justice?"CS 60 and 61- "Joe Karam wears his defamation suit"CS 65 and 66- Posts following the "where s Joe s defamationsuit now?" articleCS67-70cs 71cs 72cs 75~5J[69]~[76][78][81][83][85][88][91][93][95][97][99][1 02][104][106][109][111][115][121][123][127]CS 83 and 84cs 85cs 86cs 89-91cs 92cs 94[129][132][134][136][141][144]~%[1~cs 97cs 98CS 105 and 106cs 107CS 110 and lllThe other websitesTrade Me- "poof- another Bain thread bites the dust"TM 2- 5 "Bainaholics anonymous"TM 22 and 23TM27-30TM 40TM 41 and 42TM 42TM 43YouTubeWere the statements made on occasions of qualified privilege?DamagesMy approach to fixing damagesCompensat01y damagesPunitive damagesInjunctionResult[148][151][153][157][161][166][167][169][180][183][188][190][193][196][198][201][221][225][244][247][248]Introduction[1]The plaintiff in this case is Joseph Karam, who is well known for supportingDavid Bain through Mr Bain's appeal against conviction and retrial on charges ofmurdering his parents and tln·ee siblings. Mr Bain's acquittal at the 2009 retrialattracted numerous comments on social media sites. Mr Karam claims that many ofthe comments defamed him by conveying, among other things, that he lackedintegrity, was dishonest, was motivated to suppmt Mr Bain by the prospect offinancial gain and had defrauded the Legal Services Agency (LSA). He seeksdamages from two of those responsible for some of the comments and a permanentinjunction prohibiting further publication of defamatmy 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 hassued Mr Parker in respect of comments that Mr Parker himself posted on these sitesand also as the publisher of comments posted by third patties. Mr Parker deniedbeing the publisher of statements by third parties, relying on the defence of innocentdissemination under s 21 of the Defamation Act 1992.[3]The second defendant, Victor Purkiss, was a contributor to the Facebookpage, Counterspin and other sites. Mr Karam has sued him only in respect ofcomments that he himself posted.[4]Both defendants pleaded the affirmative defences of honest opinion,2qualified privilege3 and truth. 4 Mr Purkiss did not appear at the trial. Mr Parker wasunrepresented at trial and abandoned the truth defence during the trial.[5]24The issues for determination are:The Facebook page was initially called "David Bain is guilty" before being changed to "Justicefor Robin Bain". David Bain's case was run on the basis of murder/suicide by David's father,Robin.Defamation Act 1992, ss 9-10.Section 16.Section 8.(a)Was Mr Parker the publisher of statements by third patties? If not,Mr Karam cannot succeed in relation to those statements and therewill be no need to consider them fmther;(b)Did the comments published by the defendants relate to Mr Km·amand have the defamatory meanings contended for?(c)Is the defence of honest opinion available in respect of any commentsI find to be defamatory?[6](d)Is the defence of qualified privilege available?(e)What are the appropriate damages?(f)Should injunctive relief be granted?Before addressing these issues I briefly describe the structure of thisjudgment. I consider the question of Mr Parker's status as a publisher first. Then Ioutline the principles relevant to whether the statements sued on are defamatory andwhether the defence of honest opinion is available in respect of them. After that Iconsider each statement separately. Mr Reed QC, for Mr Karam, invited me to takea global approach to the statements complained of similar to that taken by in KordaMentha v Siemer. 5 I have, however, felt obliged to consider each of the statementssepm·ately.This is because Mr Parker properly sought to place the vm·iousstatements in the context of the ongoing dialogue of which the statements formedpat1. I then tum to consider the defences of qualified privilege. Finally, I considerthe 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 weremade on various occasions between July and December 2009, though postscontinued to be published at least up to the date of the proceedings being issued in2010. The statements that are the subject of the proceedings on the Counterspinwebsite were posted on vm·ious dates from July 2009 up to Febmary 2010 but theKorda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.Counterspin website continued to attract postings after that. It was still live as at thedate of trial.[8]Dming the trial, following an apology to Mr Karam, Mr Parker advised thathe intended to take down the Counterspin site, which he apparently did. However,after the triall'v!r Reed advised that the site had gone live again. Mr Parker did notrespond 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 pmiies rests on his statusas administrator of the Facebook page and Counterspin site when the commentswere posted. A person who takes pmi in or contributes to the publication of someoneelse's statement is, prima facie, liable as a publisher unless they can establish thedefence of innocent dissemination. 6This is a defence typically relied on bydistributors such as booksellers who, although prima facie publishers of defmnatorymaterial they have distributed, neither knew nor ought to have known that thatmaterial contained defamatory statements. The general principle was stated by LordEsher in Emmens v Pottle: 7I agree that the defendants are prima facie liable. They have handed to otherpeople a newspaper in which there is a libel on the plaintiff ... The questionis whether, as such disseminators, they published the libel? If they hadknown 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. Iam not prepared to say that it would be sufficient for them to show that theydid not know of the particular libel ... taking the view of the jmy to be rightthat the defendants did not know that the paper was likely to contain a libel,and whats more that they ought not to have known it, having used reasonablecare - the case is reduced to this, that the defendants were innocentdisseminators of a thing which they were not bound to know was likely tocontain a libel.[1 0]The defence is now that of innocent dissemination set out in s 21 of theDefamation Act 1992:In proceedings for defamation against any person who has published thematter that is the subject of the proceeding solely in the capacity of, or as the67Defamation Act 1992, s 21.Emmens v Pottle (1885) 16 QB 354 (CA).employee or agent of, a processor or distributor, it is a defence if that personalleges and proves-[11](a)That that person did not know that the matter contained the materialthat is alleged to be defamatory; and(b)That that person did not know that the matter was of a characterlikely to contain material of a defamatory nature; and(c)That that person's lack of knowledge was not due to any negligenceon that person's part.The internet has proved a challenging context in which to apply the defenceof innocent dissemination. The question in this case is whether Mr Parker, as anadministrator of the Facebook page and Counterspin website, was a processor or adistributor for the purposes of s 21. He denies that his status as an administrator ofthese sites makes him a publisher.[12]In my decision in Wishart v Murray & Ors I traced the history of US, UK andAustralian decisions that considered publication via Facebook. 8 I concluded that thestatus of publisher in an internet context depended upon editorial control rather thanactual knowledge of the existence of defamatory material. 9 A Facebook page is to beregarded as similar to a noticeboard. 10 Where the host of the Facebook page has thepower to control who can access the site to post material and who can also edit theposts, they cannot, realistically, be regarded as passive instruments or mere conduitsof content posted on the Facebook page.[13]I concluded in Wishart that those who host Facebook pages or similar sitesare to be regarded as publishers of postings made by others in two circumstances.The first is if they know of the defamatory material and do not remove it within areasonable time in circumstances that give rise to an inference that they are takingresponsibility for it.The second is where they do not know of the defamatorystatement but ought, in the circumstances, to know that material being posted islikely to be defamatory.910Wishart v Murray & Drs [2013] NZHC 540, [2013]3 NZLR 246.Tamiz v Goog/e Inc [2013] EWCA Civ 68, [2013] EMLR 14.Davison v Habeeb [2011] EWHC 3031, [2012]3 CMLR 6.Was Mr Parker a publisher ofstatements by third parties on the Facebookpage?[14]Mr Pmker did not stmi the Facebook page. He gave evidence that he joinedit in August 2009 and at that time did not have any right to edit or delete any postsbut his own.UHowever, he later became a group administrator (an "admin"member). The Facebook Help Centre page produced in evidence confirms that agroup administrator controls the membership and content of the group, can sendmessages, appoint other admin members and edit group information and settings. Iam satisfied that a person with those powers is not to be regmded as merely aprocessor or distributor.[15]On the evidence Mr Parker became an admin member at the end of August2009. Although he asse1ied that he was made an admin member because of histechnical knowledge rather than editorial privilege or rights, that status meant that hehad those rights. Further, the evidence was clear that he exercised those rights.[16]After Mr Karam complained about the content of the Facebook page in late2009 Mr Parker actively worked within the Facebook group to edit objectionablematerial.This effoti began in late 2009.There is a post by Mr Parker onCounterspin on 26 December 2009 at 1.19 pm in which he raised the issue of"cleaning up the Facebook site to remove content that is potentially defamatory andblatant". A little later that aftemoon Mr Kent identified criteria for the deletion ofposts including noting that any post clearly making claims that Mr Karam defraudedthe legal aid system should go but that he did not recall that anyone had actuallymade that assertion.The post concluded with the suggestion that "we need toconvey the impression (true or not) that we are a reasonable bunch of people and arenot malicious or hateful".[17]On 27 December 2009 Mr Pm·ker noted that an option was to "let otherpeople take over as admin". A short time later he posted that " ... I think we should11Three of the posts sued on were posted in July 2009; these are numbers 33, 36 and 40 in Table Iof the second amended statement of claim. Since Mr Parker could not have been a publisher ofthese posts I do not consider them.clean up our Facebook page ... I want to make sure that [Mr Karam's] case againstVic and me is very weak ... " And later that day he posted that "my initial thoughts is(sic) to have a terms and conditions and to announce that from now on the page willbe moderated and to specify what type of content will be removed". A few days laterMr Parker proposed that the problem of managing defamatory material on theFacebook site could be solved by making the Facebook site private so that onlymembers could access it. There were conflicting views amongst the Facebook pagemembers about this course.[18]At one point, on 29 December 2009, Mr Parker observed that, although hecould control what happened at Counterspin he did not have the mandate to do so atthe Face book page and that " ... if some discipline is not set in place at the FB sitethen I will rescind any connection with it and thus remove any liability I have",adding that he did not have the time to moderate the Facebook site. By 8.32 pm heposted that "I am no longer admin" and was not taking responsibility for the contentof the Facebook site. However, it is apparent from posts on 30 December 2009 thatMr Parker was either still an admin member or had assumed that status again. Inposts on 30 and 31 December he acknowledged deleting another member's post andannounced that "because of the increasing exposure of the contents of the site to thepublic and the mticles in SST (Sunday Star Times) and elsewhere we have removedthe site from public view".[19]I find that Mr Parker was a group administrator between 30 August and 8.30pm on 29 December 2009 and again after 11.30 am on 30 December 2009. As suchhe had the power to edit and remove posts. Fmther, it is clear that Mr Parker knewthat the posts on the Facebook site did or were likely to contain defamatory material.Mr Parker is therefore to be regarded as a publisher of posts made during this period.Was Mr Parker the publisher ofposts on Counterspin?[20]In his evidence Mr Parker described his growing interest in the Bain case andhis idea for "an anti-propaganda website". After the acquittal, and following repmtsof legal aid payments to Mr Karam for work on the defence, Mr Parker "tookumbrage to what I saw and so began to implement my website idea". The websitehad a variety of content including infmmation about the evidence, editorial items inrelation to the retrial verdict and editorial items about legal aid payments toMr Karam. Mr Parker described Counterspin as "not a blog but a media site with amultitude of features and a number of contributors".[21]In a post on the Facebook site on 30 December 2009 Mr Parker said, in thecontext of a discussion about possible defamation claims against him, that:. . . Regarding the face book site Karam could consider the admin people(Gavin, Blair and myself) as responsible parties and direct his attentions tous. However he may have difficulty considering it is a social networkingsite and as far as I know there is no precedent for action against such a site.The counterspin site however is quite different in that it is built expressly forthe purpose of telling the other side of the stmy. As creator of the site andpublisher of the content I have sole responsibility and would be the target ofany defamation action. I believe that I have cleaned out the content ofanything that is directly defamatory. If any of the content remaining isdefamatory and should be removed then so should hundreds of news repmtsand public blogs and forums tlu·oughout the internet.[22]On 14 January 2010 Mr Parker posted on the Facebook site, in the context ofa discussion about raising the profile of Counterspin that:So, if you want to keep our side of the story with a high profile then I askyou to have your discussions over at counterspin but note that counterspin isa moderated forum so if you are going to be controversial or defamatorykeep it here at Facebook. At counterspin we can edit and do searches onposts and if a thread becomes a little on the dark side we can make it private.We cannot do that here on Facebook ...[23]Given the stated nature of the Counterspin site and Mr Parker's postsregarding his control over the site and efforts to moderate and edit posts made on thesite I am satisfied that Mr Parker does not fall within the scope of s 21. He is to betreated as a publisher of all posts on Counterspin, whether they were his or those ofthird parties.The meaning ofthe statements- relevant principles[24]The plaintiff in a defamation case must establish that the statement publishedby the defendant was about him or her and was defamatmy.[25]There is no statutory definition of what constitutes a defamatory statement.However, the common law has produced a number of well recognised characteristicsof defamatory statements. Relevantly, these include a statement that may tend tolower the plaintiff in the estimation of right-thinking members of society generally 12and a false statement about a person to his or her discredit. 13[26]The principles to be applied in determining whether the various statementshave the meaning Mr Karam attributes to them are summarised in New ZealandMagazines Ltd v Hadlee (No 2): 14[27](a)The test is objective: under the circumstances in which the wordswere published, what would the ordinmy reasonable personunderstand by them?(b)The reasonable person reading the publication is taken to be one ofordinary intelligence, general knowledge and experience of worldlyaffairs.(c)The Coutt is not concerned with the literal meaning of the words orthe meaning which might be extracted on close analysis by a lawyeror academic linguist. What matters is the meaning which theordinaty reasonable person would as a matter of impression carryaway in his or her head after reading the publication.(d)The meaning necessarily includes what the ordinmy reasonableperson would infer from the words used in the publication. Theordinary person has considerable capacity for reading between thelines.(e)But the Coutt will reject those meanings which can only emerge asthe product of some strained or forced interpretation or groundlessspeculation. It is not enough to say that the words might beunderstood in a defamatoty sense by some pmticular person or other.(f)The words complained of must be read in context. They musttherefore be construed as a whole with appropriate regard to themode of publication and surrounding circumstances in which theyappeared.The last principle, that the words complained of are to be read in context, isparticularly relevant in this case.Some of the statements were made duringconversations that continued over many hours, sometimes days. The meaning ofeach statement and whether it is properly regarded as an expression of opinionl2l314Sim v Stretch [1936]2 AllER 1237 (HL) at 1240.Youssozpoifv Metro-Go!dH~'n-Mayer Pictures Ltd(1934) 50 TLR 581 (CA) at 584.New Zealand Magazines Ltdv Had/ee (No 2) [2005] NZAR 621 (CA) at 625.cannot be determined without considering the posts leading up to it.Mr Parkersubmitted that a crucial part of this context is that the comments occmTing oninternet fora and blogs will not be taken by reasonable readers to be accurate, butmerely as vulgar abuse. This concept is derived from the case of Smith v ADVFNwhich held that, in relation to a bulletin board thread, it was: 15... often obvious to casual observers that people are just saying the first thingthat comes into their heads and reacting in the heat of the moment. Theremarks are often not intended, or to be taken, as serious.[28]Mr Parker also relied on Baglow v Smith which distinguished intemet foraand blogs fi·om other forms of publication. 16 This distinction was made on the basisthat the context of an ongoing debate would reduce the sting of the defamatorycomments as sharp and witty replies are seen merely as part of the 'patTy and tluust'of the debaters. 17[29]However, there is no principled basis on which internet fora and blogs shouldattract a different test for what constitutes a defamatory statement. There may wellbe a degree of casualness associated with contributions to online conversations. Inthis regard they might be likened to talk-back radio. However, the capacity for harmresulting from the permanent nature of posts means that those posting statementsshould not be relieved of the usual constraints imposed at law. 18The defence of honest opinion - relevant principles[30]Mr Parker raised the defence of honest opinion in relation to all thestatements. 19 This defence recognises the imp01tant right that everyone has to holdand express his or her opinion on any matter of interest or concern. There are,however, limitations on this right. The right and the limitations on it have increasingrelevance today in relation to social media; social media sites allow opinions to bedisseminated eff01tlessly to potentially vast numbers of readers without constraintsl516171819Smith v ADVFN[2008] EWHC 1797 (QB) at [17].Bag/ow v Smith (2011) ONSC 5131 at [60].At [64].A similar view was expressed by Judge Ross in 0 'Brien v Brown [200 1] DCR 1065 (DC).Defamation Act 1992, ss 9-10, which largely reflect the common law defence of fair comment.in terms of time or geography. The sense of relative anonymity and the immediacyof social media sites can have a disinhibiting effect.[31]The principles that relate to the defence of honest opmwn are wellestablished. First, the defendant must show that the publication was an expression ofopinion rather than a statement of fact. That is a question to be determined byreference to the whole of the publication, rather than specific statements or words.20The impotiance of context, as the Comi of Appeal explained in Mitchell v Sprott, isthat isolated statements, which appear as assertions of fact may properly be read ascomment on or conclusions drawn from other facts when read against the entirepublication:21[ 17].. . Sometimes it is not easy to distinguish fact from comment onfact. If that cannot be done, the words are not protected by the honestopinion defence. Sometimes words may in isolation appear to be stating afact but when read in context and properly understood to be drawing aconclusion from facts which have also been stated or indicated by the authoror which would have been known to the person to whom the words wereaddressed. They can then be seen to be in the nature of a comment orexpression of opinion based on those facts. The person who hears or readsthe words can recognise them as opinion which he or she can evaluate on thebasis of the stated or known facts. As Gatley on Libel & Slander (9 1h ed,1998) says at para 12.7:Words which are clearly comment are likely to be treated with morecaution by the reasonable reader and hence are less damaging thanassetiions of fact.[32]Secondly, the comment must indicate, either expressly or implicitly, the factson which the opinion is based. This is so the reader knows what the maker of thestatement is commenting on and can make his or her own assessment. Thirdly, thefacts on which the opinion is based must be shown to be true or not materiallydifferent from the truth or must be based on facts generally known at the time ofpublication. However, even if several facts are relied on, not all need to be proved tobe hue; one fact that suppmis the comment may be sufficient. 22202l22Television New Zealand Ltd v Haines [2006]2 NZLR433 (CA).MitchellvSprott [2002]1 NZLR 766 (CA) at [17].At [22]; Joseph v Spiller [2010] UKSC 53, [2011]1 AC 852, discussing Kemsley v Foot [1952]AC 345 (HL) at 358.[33]Finally, if the opinion is that of the defendant it must have been honestlyheld. 23 The position is different where the defendant is not the author of the opinion;if the author is neither an employee nor agent of the defendant then the defendantmust prove that the opinion, in its context and in the circumstances of thepublication, did not purp01i to be his or her opinion24 and, further, that the defendanthad no reasonable cause to believe that the opinion was not the author's genuineopinion. 25[34]I turn now to consider each of the statements sued on.The statementscomplained of are set out in tables in the Second Amended Statement of Claim. Ihave used the same "ID" numbers as are used in the tables. 26The Facebook pageFB 2, 3 and 4- the "too prejudicial" thread[35]These statements were posted by third pmiies as pali of a conversation on21 December 2009 under the thread title "Too Prejudicial". The initial post referredto a "new case that Karam appears to be getting involved with ... ". Then:•FB 2 said:Is it just me or does Karam have a thing for Dunedin crimes? Must be hisnew way to get legal aid money, after David's compensation is denied!!•FB 3 said:I think JK is deluding himself - or looking for another campaign to run.Obviously the whole legal aid gravy-train scenario proved to be so lucrativefor him he's going to have another crack at it. Must think he's some kind ofSherlock Holmes (wanna-be that is). Boy, anything to be in the limelight![36]The complaint is that these statements meant and were understood to meanthat Mr Karam lacked integrity, was motivated by money and had defrauded theLSA.23242526I consider that the ordinary meanings of FB 2 and 3 is that Mr KaramDefamation Act 1992, s 10(1).Section 10(2)(b)(i).Section 10(2)(b)(ii).Table 1 related to the Facebook page, Table 2 to the Counterspin site, Table 3 to Trade Me andTable 4 to You Tube. So the reference to "FB 2" would be a reference to the first item in Table I,which is ID 2 and relates to a Facebook post. The numbers are sequential because of changes tothe pleadings over the course of the proceedings.supp01ted David Bain's case for financial gain because he believed that he couldobtain legal aid payments. The statements were defamatory though they fall shott ofassetting actual dishonesty.[37]I consider that they were both expressions of opinion. The apparent basis forthe comments was not the "new case" but the generally known fact that Mr Karamhad received payments from LSA in connection with the Bain case, this fact havingbeen publicly reported in June 2009 following the retrial.I consider that thesecomments indicate sufficiently the factual basis for opinions.[38]FB 4 said:Definitely makes one wonder at the calibre of 'witnesses' Karam came upwith in the 2"d trial. Prostitutes and pimps?[39]FB 4 was a continuation of the preceding discussion. It is difficult to discernany logical thread in the comments immediately prior. Therefore the context of FB 4can only be seen as a general conversation about the issues raised by prostitute andpimp witnesses. FB 4 plainly suggested that the witnesses that Mr Karam locatedwere not genuine and that he knew that. This conveys that Mr Karam is dishonestand acted improperly in assisting with the defence. It is defamatory. The onlyfactual basis indicated for the statement was the fact that some of the witnesses at theretrial were "prostitutes and pimps". However, although there were witnesses whoseoccupation fitted that category, there was no evidence to support the assettion thatMr Karam "came up" with these witnesses. Therefore the defence of honest opinionfails.FB 6A- "A misuse ofLegal Aid?"[40]The complaint is that the statements at FB 6A regarding Mr Thomasconveyed that Mr Karam lacked integrity, behaved improperly in relation toMr Bain's defence and used propaganda. The statement at FB 6A appeared underthe thread title "A misuse oflegal aid?" and said:AAT's appearance was carefully orchestrated to make it look like db was ofa similar ilk when clearly he is NOT. Also I don't think AAT has the brainsto see that he is being used by jk as a publicity stunt.[41]Only the second sentence is sued on. That sentence conveys that Mr Karamorchestrated Mr Thomas' appearance at the Bain retrial and cynically used him toelicit sympathy and supp011 for Mr Bain, which meant that Mr Karam lackedintegrity, was dishonest and conducted himself improperly in relation to DavidBain's defence.defamatory.I agree that the statement did have these meanings and wasI also consider it to be an expression of opinion.However, theindicated basis for the opinion, which appears from the preceding sentence, is not theknown fact that Mr Thomas did attend court in supp011 of Mr Bain but, rather, theassertion that AAT's appearance had been orchestrated. This was untrue; Mr Thomasgave evidence that he had attended the retrial of his own volition. Therefore thedefence of honest opinion fails.FE 9 and 10- The "happily uninformed"[42]FB 9 and 10 appeared on 1 and 2 December 2009 under the thread title"Happily uninf01med???"The posts, both by third patties, were pmt of aconversation that explored the idea that many people who had concluded thatMr Bain was innocent were "happily uninf01med". The posts, which were the thirdand ninth of this conversation said:•Appearances can be deceiving, and cettainly with the propaganda from HerrKaram, (cf Herr Goebbels) it is no wonder so many believe David isinnocent. Goebbels was very efficient at telling lies until people believedhim. Herr Karam isn't in the same league, but still the method still works.•Gavin, you are right. Josef Goebbels knew and understood these principlesperfectly. Jochmen Fest the famous German Historian in his book "TheFaces of the Third Reich" did an in depth profiles of Hitler's leadinghenclunen and found it most disturbing that these people seemed so ordinaryand "normal".[43]The complaint is that FB 9 meant and was understood to mean thatMr Karam lacks integrity and is a liar, uses methods of the kind used by Goebbelsand is to be compared to tyrants such as Hitler.I consider that the obviouscomparison between Mr Km·am and Josef Goebbels and the explicit reference to liesmeans that the statement did have the meaning contended for. Self-evidently, it wasdefamatory.[44]FB 10 was clearly refetl'ing back to FB 9 in its address to the author ofFB 9(Gavin James) and reference to Josef Goebbels. The first sentence seeks to confitmFB 9 in linking Mr Karam with Goebbels' methods and therefore continues thesuggestion that Mr Karam uses such methods. I therefore accept that FB 10 cal1'iesthe same meaning as FB 9 and is defamatory.[45]Nor do I consider either to be expressions of opinion. They both effectivelyassert baldly that Mr Karam used the same method of lies and propaganda asGoebbels. As a result, I find that the defence of honest opinion fails in relation toboth statements.FB 11- "why not petition for a third trial?"[46]Mr Purkiss was the author of this post, which occurs in a conversation on13 December 2009 under the thread titled "Why not petition for a third trial?".FB 11 appems well into that discussion:Ifjk ever gets his hands on half of BigEars compensation then the tie will bebroken and BigEars will be cast adrift to fend for himself. "Show me themoney!!!!"[47]This conversation explored the idea of a third trial and various concernsabout the verdict at the retrial. Mr Karam was mentioned occasionally in passingduring these posts but not the issue of compensation for David Bain, which wasraised for the first time by FB 11.[48]Mr Karam complains that FB 11 means that he lacked integrity, andmisrepresented his motives for supporting David Bain. I find that the statement didhave these meanings; the clear suggestion is that Mr Karam's true motivation was toobtain a share of any compensation paid to Mr Bain. The statement is not clemly anexpression of opinion and, in any event, there is no factual basis for it referred to andno indication of what the opinion was based on. The fact that compensation hadbeen raised as a possibility in the public arena could not provide an adequatefoundation.FB 14- "Relationships"[49]The next impugned statement is FB 14, posted on 17 December 2009 underthe heading "Relationships":He knows he did it, they know he did it, and I rather suspect Mr Karamknows he did it also. The enticing possibility of compensation will beforemost in Mr Karam's mind though - at least 50% of it anyway, so hewon't be cutting him loose until that avenue has been fully investigated then there's the royalties fi·om the books, the inheritance (not that there isone anymore) but JK will be looking into all of these ...[50]The conversation leading up to FB 14 centred around the relationshipbetween David Bain and his brother, Stephen, and, to a lesser extent, the dynamicsbetween David Bain and Mr Karam. Mr Karam complains that, to the extent it refersto him, it means he lacks integrity, is dishonest and has misrepresented his realmotive for helping Mr Bain.I find that these meanings are contained in thestatement and are defamatory; they suggest that Mr Karam knew, but chose toignore, the likelihood or fact that Mr Bain committed the crimes and that he ismotivated to continue supporting Mr Bain by the prospect of a share of anycompensation paid to Mr Bain. Although the f01mer is clearly an expression ofopinion regarding Mr Karam's motive, the latter assertion is not. Even if it could beviewed as an expression of opinion, there is no factual foundation for it.FB 15- "Psychic"[51]FB 15 appears under the undated conversation "Psychic?'"'I think JK is a complete idiot and he knows damn well that he assisted amurderer off ... if he is proud of that, then he is to be pitied.[52]This conversation was about the use of psychics in murder investigations.Mr Karam is barely mentioned. Mr Reed submitted that FB 15 meant that the post isclearly the author's opinion that Mr Karam knew that Mr Bain was guilty of murder.This is defamatory. However, there is no specific basis assetted for it, no referenceto material in the surrounding texts and not even actually general indication as to thebasis for this opinion. The defence of honest opinion fails.FB 16- "Men's bladders"[53]FB 16 was the first post under the heading "Men's bladders" on 22 December2009 and concerned the evidence regarding the state of Robin Bain's bladder at thetime of death:Perhaps someone should ask Karam whether he goes to the toilet first thing,but he would probably deny it, even if he did.[54]Mr Karam complains that the post means that he is a liar. I agree. Mr Parkeralso accepted this to be so. I find that there is no basis indicated for that conclusionand the honest opinion defence fails.FB 20- "Missed????"[55]The undated conversation under this thread title was a general exchange ofv1ews about the Crown handling of the retrial and a few comments regardingMr Karam's involvement. In FB 20 Mr Purkiss then said:If Karam REALLY cared about db he would not do another thing in relationto this case/NO campo claim, NO inheritance claim, NO book/NOT anotherthing/not even a reply to letters to the ed's. He should forget about it and letthe people slowly but surely forget it. Eve1y time he opens his mouth itprolongs the issue. But then this is what he wants. More ways to make adollar/NOT justice for david bain.[56]The statement meant that Mr Karam was motivated to help David Bain by theprospect of financial gain and was continuing to be involved for that reason ratherthan any genuine desire to assist Mr Bain. The statement was defamatory. It is anexpression of opinion but there is no apparent basis for it. Nor is there anything toindicate the basis for the conclusion that is expressed. As a result, the honest opiniondefence fails.FB 21 - "Our prickly Joe"[57]This statement appeared in the course of a conversation prompted by mediareports, including a reference to an miicle by Deborah Coddington about Mr Karam.The author of the immediately preceding post referred to a Listener article in whichMr Karam reportedly said "no-one will ever know what really happened that day".Mr Purkiss then wrote FB 21:Well Joe if "no one will ever know what really happened that day" it mayhelp to read the evidence so that one could make a better informedconclusion.AND of course be honest with yourself when the evidence has been readinstead of fighting on so that a guilty person walks free, 12 people have tolive now knowing they made the wrong choice and millions of taxpayersdollars have been used to bring about an injustice!! It's one thing to get aperson most likely to be guilty freed but to throw the blame for that person'scrime onto an innocent man that cant defend himself is about as low as anyperson can sink. Shame on you!!Joe, you know the truth as well as or maybe even more so than most people.[58]I find that these statements did convey that Mr Karam lacks integrity and isdishonest in that he assisted Mr Bain when he knew or should have known that theevidence did not suppmt the conclusion that Mr Bain was not guilty. However, thebasis for the opinion is the statement previously attributed to Mr Karam. Thereforethe defence of honest opinion succeeds.FB22[59]Mr Parker posted FB 22 on 12 October 2009:I think this case is interesting because it involves two complex and fracturedpersonalities: that of David Bain and Joe Karam, who have jointly conspiredto create this circus out of the media and our justice system.[60]I do not consider the comments regarding Mr Karam's personality to be anattack on his integrity. However, the second sentence of FB 22, in my judgment,conveys that Mr Karam lacked integrity in his support of Mr Bain, the suggestionplainly being that his efforts were not directed at a genuine issue but that he andMr Bain had deliberately misused both the media and the criminal justice system. Tothat extent I consider the post to be defamatory. However, I also consider that it is anexpression of opinion for which a sufficient basis existed in the fact of Mr Karam'spublicising of Mr Bain's position.Mr Karam's effmts through his books andinterviews were well known and it was open to Mr Parker to express his own opinionas to the nature ofthose efforts.FB23[61]This post by a third pmiy said:I strongly believe that Karam knows the truth. Once he had access to all trialdocuments and had talked with Guest he couldn't have had any doubt but hehad already allowed himself to be seen as champion of the cause(photographed outside the Privy Council as the anonymous benefactor) andso couldn't bare [sic] to lose face. I wouldn't be surprised if that was thereason he "let Guest go" as legal advisor (Guest may have had more scruplesthan he has been credited with!).[62]Whilst this statement also impugns Mr Karam's integrity by suggesting thathe deliberately promoted Mr Bain's irmocence when he knew that he was notirmocent, it is an opinion founded on the basis of the trial documents and the authorwas entitled to express that view. The defence of honest opinion therefore succeedsin relation to this statement.FB 24 "Karam speaking engagement"[63]FB 24 relates to a letter written by Mr Parker to St Patrick's College andreproduced on the Face book page. The purpose of the letter was to dissuade theCollege from inviting Mr Karam to speak, or at least to speak about the Bain case.The relevant portion stated:... I ask you to look at the other side of the case which has not receivedKaram inspired media attention and in which the conclusion is that DavidBain is most likely guilty and that Joe Karam has caused considerabledamage to at least one policeman's careet; slandered a dead person whocannot defend himself, cost the countty millions in legal aid for a falsecampaign and undermined the NZ Justice system.[64]I find that ordinary meaning of this statement is that that Mr Karam hasdefamed people and defrauded the LSA and the taxpayer through obtaining millionsof dollars in legal aid on the strength of Mr Bain's irmocence when he knew thatMr Bain was guilty. It undoubtedly means that Mr Karalll lacks integrity. Read inits entirety I am satisfied that the statement is an expression of opinion. However,there is no reference to specific facts on which that opinion could be seen to bebased, nor any general indication as to the basis for the conclusion. The defence ofhonest opinion fails.FB 25 and 26[65]FB 25 was a statement by Mr Purkiss suggesting that Mr Karam was notbeing honest with himself about David Bain's guilt:Hey joe. If you read the evidence and are true to yourself you discover like Ihave that David Bain is guilty of murdering his family and Robin Bain is aninnocent man. Joe, you got it wrong and a man that could kill again iswalking the streets a free man all due to you.[66]I find that the statement conveyed that Mr Karam lacked integrity in that hehas deliberately ignored the evidence of Mr Bain's guilt.Howeve1~the reference tothe evidence and to Mr Purkiss' view based on the evidence takes the statement intothe realm of an expression of opinion and provides a factual basis for that opinion.The defence of honest opinion succeeds in relation to FB 25.[67]FB 26 is pmt of a post by Mr Parker soon after FB 25. The whole post said:I do not want to choke democracy by suggesting that Karam not be allowedto write his books but he shouldn't be allowed to have a retrial if he iswriting them for the pmpose of obtaining 'justice'. Self-expression yes but'justice' no because his books are inherently too biased and he has positionedhimself to directly benefit (from compensation and other payouts).He should stick to fiction because that is what he is best at. He shouldn't beslandering dead people for the sale of his writing career or any other pati ofhis career for that matter, which is basically all he has done.[68]It is only the latter pmt of the statement that is sued on.The ordinarymeaning of this statement is that Mr Karam's writings on the Bain case wereinaccurate and defamatory and written to advance a career as a writer. I find that itdoes convey that Mr Karam lacks integrity. However, it is plainly an expression ofopinion about Mr Karam's books. Mr Parker was entitled to express a view aboutthat.FB 27, 28 and 30- "The Blind Tyranny ofBelief"[69]These posts were by Mr Parker on 14 September 2009. FB 27 said:When it comes to truth, evidence, thought, and discussion, Joe Karam is atyrant.2.In terms of evidence, he carefully smudges each item thatincriminates David Bain to such an extent that it opens the door toreasonable doubt, while at the same time promoting an alternative scenarioso believably ridiculous that would make the Nazi Gestapo proud.4.In tenns of discussion, Karam deals with opponents to his beliefsystem with vitriol, bullying, defamation suits and other such attackmethods. He is not capable of rational discussion and only acceptable ofideas that fit his belief system.Karam would be right at home in another type of political climate, such asNmth Korea but he is in a place where democracy and scientific reasoningprevail.Karam's tyranny might be small and irrelevant, but it is a tyrannyneve11heless.[70]FB 28 said:... so all the things said in representation of DB have been JK inventions.the David Bain case is about Joe Karam testing his meticulously constructedbelief system.[71]The meaning of these posts is that Mr Karam improperly threatens those whodisagree with him, misrepresents the evidence, uses methods such as those used bythe Nazi propaganda and is to be compared to political tyrants such as thosecontrolling Nmih Korea. The post is a mixture of asse1iions of fact and opinion. ButI find that the assertion that he "smudges" evidence is a statement of fact and theasse1iion that he responds to those who disagree with him by improper tlu·eats is anassertion of fact, neither of which was proven.The statements comparingMr Karam's methods to those used by the Nazis and that he is tyrannical and fairlycompared to those in power in Nmih Korea are also assertions of fact.Thestatements ce1iainly convey that Mr Karam lacks integrity and is dishonest but morethan that, is guilty of such gross distortion of the tmth as to be compared to Nazipropagandists.They are unquestionably defamatory and are not expressions ofhonest opinion.[72]FB 30 said:We find that over 2 mil has been handed out by Legal Aid Services to defendDB, which is the greatest sum ever, and Robyn Nicholas forked out$330,000 to JK as legal assistant because of his extensiveknowledge/obsession/tyranneous hold on the case (see item I in the post).... what's to say that he can't sway the caretakers of the legal system, such asRobyn Nicholas and the one crucial QC who looks at the case, into givinghim what he wants?[73]Although this post does express an opinion about Mr Karam as beingsomeone who has an obsession about the case and a "tyrannous hold" over it, it doesnot convey any dishonesty on Mr Karam's part and, further, refers to facts regardingthe amount of money paid to Mr Karam by LSA, thereby providing a factual basisfor the opinion being expressed. The defence of honest opinion therefore succeedsin relation to this post.FB31[74]This post by Mr Purkiss said:I believe he knows db is guilty but having come this far how can he nowback down?[75]The meaning of this is obvious. It conveys that Mr Karam lacks integrity, isdishonest and misrepresented his motivation for helping Mr Bain. It is defamatory.There is no reference in the post itself to suggest any factual basis for thinking thatMr Karam believed David Bain to be guilty. Nor, when one goes back tluough theprevious posts in this thread, is there any factual material from which that conclusionmight have been drawn. The defence of honest opinion fails in relation to this post.FE 38- "Book Canned"[76]FB 38 by Mr Purkiss appeared well into a conversation about news thatHarper Collins had decided against publishing another book about the Bain case (notby Mr Karam). Mr Purkiss said:Harper Collins must know they have made a bad investment regardingNoddy's proposed new book. The pro-Bainers have lost interest in thewhole thing as they believe they have achieved their aim. You only have tolook at their sites to see how uninterested they are in defending him againstthe likes of us. Not that I suppose they have to bother.I think a new book which contained the evidence that Robin Bain is illllocentwould be a far better seller and perhaps Harper Collins should commissionsomeone to produce a book along those lines to recoup some of the doshthey would of [sic] already advanced to Noddy.Any new book from Nod(ly will only be about him so perhaps he shouldtitle it "Mein Kampf''.[77]The complaint is that the emboldened part of the statement conveyed thatMr Karam's methods can be equated with those of the Third Reich.I do notconsider that the statement does have this meaning. The meaning is stated clearly,namely that anything Mr Karam writes will likely be about him. The reference toHitler's book Mein Kampf may invite parallels with Hitler given previous postsreferring to Hitler and Goebbels. But in the context of the conversation it forms pmtof I think it more likely a suggestion that Mr Karam was only interested in writingabout himself. The claim fails in respect of this item.The Counterspin websiteCS4 and6[78]Both these statements appear in the same article by Mr Parker on theCounterspin home page on 8 January 2011. They said:This site has been put together to counter the spin surrounding David Bainthat has been publicly promoted over the last decade or more by Joe Karamin his insistence that David is innocent of the murder of his family. In theretrial of 2009 certain elements unique to this case have produced a resultthat is unlikely to reflect the truth ...In light of the above, Joe Karam did not hesitate to file defamation suitsagainst people who published supposedly unsubstantiated material about himand has created an atmosphere of constant threat in the media which has hadthe effect of stifling constructive criticism of his campaign.[79]CS 4 is said to carry the meaning that Mr Karam lacks integrity and tsdishonest. The word "spin" means, in this context, placing a patticular slant (usuallyfavourable) on a situation. It is generally regarded as pejorative. However, the firstsentence alone falls short, in my judgment, of actually conveying that Mr Km·amlacks integrity or was dishonest. It is a statement made against the background ofMr Karam's very public eff01ts, including the production of several books, about theDavid Bain case. It would, even if I considered the meaning to be defamatory,attract the defence of honest opinion. The second sentence makes no mention ofMr Karam and cettainly satisfies the requirements of honest opinion.[80]In comparison, I consider that CS 6 does carry the meaning attributed to it,that Mr Karam makes improper threats to anyone who disagrees with or opposeshim.The meaning is plainly that Mr Karam threatens defamation suits wheregrounds for doing so either do not exist or are doubtful and does so in order toprevent criticism of his support for Mr Bain.However, general knowledge ofMr Karam's defamation suits provides a factual foundation on which this opinioncan be based. Therefore the defence of honest opinion succeeds.CS7[81]This statement also appeared on the home page of the Counterspin website.It said:There also remains the question of compensation and if this goes ahead thenmore than $1 millon of taxpayers' money could be paid out. As a result ofan agreement made in 1996 Joe Karam is entitled to receive half. He may beon a campaign for justice but he is also lining his own pockets in the process,thank you vety much to you, the taxpayer. In many ways Joe Karam hasmade David Bain a career strand and is endeavouring to make as muchmoney out of the case as he can ...[82]Only the last two sentences of this statement are sued on. Plainly, they domean that Mr Karam lacks integrity and has misrepresented his real motives forsupporting Mr Bain. The preceding two sentences, if cotTect, would provide afactual basis for the subsequent opinion. However, Mr Karam confirmed in evidencethat while in 1996 he signed an agreement which gave him an entitlement to half ofthe proceeds, this agreement had been superceded by the creation of a secondagreement sh01ily after the first. Therefore, the defence of honest opinion fails, as atthe time the statement was written it was not conect that Mr Karam was entitled tohalf of the case proceeds.CS 8- "conflicting evidence"[83]This post said:Joe Karam made much of the computer timing and the bloody sock printsbut they are probably both red herrings, much in the same way that a rugbyplayer feints a pass in order to hide their real intention of blunderbusting[sic) all the way to the goal line.[84]The complaint is that this statement suggested that Mr Karam lacked integrityand misrepresented his real motive for suppmting Mr Bain. The clear suggestion inthe statement is that Mr Karam deliberately overstated the significance of thecomputer timing and the sock prints in order to hide other flaws in the defence case.Whilst that may convey a lack of integrity, it is undoubtedly an expression of opinionwhich was made against the fact that Mr Karam had written about (among otherthings) the computer and the sock prints. Further, that statement was part of a postthat included the assertion that the margin of error of the computer and witnesstestimonies and margin of error in the evidence of expert witnesses about thefootprints was sufficient to allow for both defence and prosecution scenanos.Looked at in its entirety, I consider that CS 8 was a statement of honest opinion.CS 9 -II "how the not guilty verdict was obtained"[85]This post took the form of a number of shmi points, three of which are suedon. They are:Karam used his personal charm and influence to convince a sizeableproportion of the population that his cause has merit and that David Bain isinnocent. This was done without reference to facts but simply throughpersistent promotion and persuasion ...Karam enlisted expelis Ji"om around the world to testifY on technical aspectsof the case and smudging what would otherwise have been robustincrimination evidence against David ...With careful use of overseas expetts Karam was able to narrow therequirements for reasonable doubt to such an extent that even the mostunlikely sequence of events is given a reasonable chance of occurring.[86]Mr Karam complains that CS 9 meant and was understood to mean that helacked integrity and was dishonest. I find that the words meant that Mr Karam didnot refer to any facts in his promotion of the defence scenario but relied solely onpersonal charm and influence.This amounts to a lack of integrity; given theextensive consideration given to the evidence in Mr Karam's books (whether oneagrees with it or not) this statement of opinion had no basis and, to the contrary,suggested to readers that there were no facts on which to assess the opinion.[87]CS 10 and 11 are said to have meant and be understood to mean thatMr Karam lacks integrity, acted improperly and counter to the interests of justice inassisting in David Bain's defence. However, the only objectionable aspect of eitherof these statements is the use of "smudging", the ordinary meaning of which is tomake blurred. Since Mr Karam did~mangeexpert witnesses and, in the context of acriminal case, that could have been only for the purpose of raising a reasonabledoubt, I do not see that these statements are defamatory. They would, in any case,satisfy the honest opinion defence.CS 13 ~ "create a following using personal charisma and influence"[88]This lengthy post includes the statements that:All you need is a charismatic leader and a slightly wacky cause orphilosophy, tie that in with a decade of passionate ambition and persuasionand you have the makings of a cult. Like Ron Hubbard of Scientology fame,Karam is business wise and money savvy. He knows how to work anaudience both through books and other forms of self-promotion. He knowshow to upset the authorities and make them look mean and unforgiving inthe public eye. Furthermore he knows how to take a grain of untruth andturn it into the biggest of truths ...His promotion and propaganda has gathered around him something akin to acult following consisting of people who are willing to overlook considerableempirical evidence ...Once a cult has been established with its ingrained belief system it is veryhard to remove especially if its leader continues to write books and attemptto profit from any social vindication of its fundamental beliefs (eg the notguilty verdict in the retrial) ...Cult leaders generally prey on insecurity and the need for escapism. Byfocusing on the needs of another person you can escape dealing with yourown problems. One has to wonder what the initial belief fulfilled in JoeKaram when he allowed it to overcome his life and become an obsession ...For [Paul] Holmes to describe Karam as obsessed ... illustrates two thingsThat he really does have a problem. Calling Karam obsessed is not acompliment. There is at least one clinical psychological disorder thatinvolves obsession ...[89]The complaint is that these statements meant and were understood to meanthat Mr Karam lacked integrity, was dishonest, misrepresented his real motives forsupporting Mr Bain, used a propaganda of lies, innuendo and fabrication and had apersonality disorder.The general tluust of these statements is to suggest thatMr Karam worked to create a type of cult tlu·ough his promotion of the Bain causeand had an unhealthy obsession with the case, suggestive of a personality disorder. Iaccept that the statements did mean and were understood to mean what is allegedand were defamatory.[90]However, it is also clear that the post is an expression of opinion and, fmiher,that it is an opinion based on known facts about Mr Karam, such as the level of timeand energy he has put into the Bain case, the promotion of the defence case throughhis books and the NZ Herald interview with Paul Holmes in which the latterdescribed Mr Karam as being obsessed with the case. In these circumstances there isa sufficient foundation for the statements made to find that the defence of honestopinion is made out.CS 14, 16 and 17- "13 years' promoting one point of view"[91]This post was relatively shmi and contained the following statements:[During the 13 years Mr Karam had been supporting Mr Bain] the result wasa power of a lot of propaganda ... With so much time and influence pushingtowards the idea that David is innocent, empirical facts have been smudgedand the door of reasonable doubt has been opened so wide that many nowclaim that Bain is innocent ...If you promote a fallacy enough eventually you can make it a fact.[92]Mr Karam complains that these statements meant and were understood tomean that Mr Karam lacked integrity, was dishonest, used a propaganda of lies,innuendo and fabrication. I agree that the statements complained of do mean andwould have been understood to mean that Mr Karam misrepresented facts andevidence to such an extent as to persuade people that Mr Bain was innocent, when hewas not. However, those statements are to be read in the context of the post as awhole. The post refers to the fact that for some 13 years Mr Karam had writtenbooks and atiicles and been the public face of Mr Bain's cause and promoted theopinion that Mr Bain was innocent. The author also points out that because theCrown had so many other crimes to deal with and no-one else had the authority, timeor money to promote Mr Bain's case there was little opposition to it. Whether theconclusions that the author drew from the extent of Mr Karam's involvement in theBain case are justifiable is not the issue. I consider that the reference to factualmatters relating to Mr Karam's involvement in the Bain case provide an adequatefoundation for the expression of opinion recorded in that post. The defence ofhonest opinion succeeds in relation to these statements.CS 19- "muddied waters"[93]This post opened with the reference to Mr Karam's initial involvement in theBain case including the agreement he had that he would receive half of any earningsthat Mr Bain might one day earn from the proceeds of the case (and the fact thatMr Karam had referred to this agreement in his book David & Goliath). The authorwent on:While proving David's innocence is important to Karam, he must have goneinto this with some idea of the potential to earn it into a money spinner forhimself.Karam would have us believe that he has spent a lot of his own money onthis case but it is also evident that he spent a lot of taxpayer money as well,not only during the retrial but also for the Appeals that he undertook. Inaddition, over the years he has earned money from legal aid, publishingbooks, law suits against journalists and through fundraising. If he issuccessful in his bid for compensation then he gets half of the payout forhimself ...During the retrial Karam's defence team managed to draw over $2 million oflegal aid, the largest amount ever for a single trial. Of this Karam took hisslice as remuneration for his work in assembling the documents for the case.[94]The complaint is that these words meant or were understood to mean thatMr Karam lacked integrity, had misrepresented his motives for supporting Mr Bainand had defi·auded the LSA.I agree that the ordinary meaning of the wordsconveyed and would have been understood to mean that Mr Karam did supportMr Bain at least patily for financial motives and that he obtained legal aid money forwork that did not justify such payment. However, all of these statements are plainlyexpressions of opinion and offer as their foundation information known to be in thepublic arena and to be con·ect. In these circumstances the honest opinion defencesucceeds.CS 20- "Arthur Allan Thomas[95]s 30'""This post was, unlike the previous Counterspin posts I have discussed, madeby a third party. It refened to Mr Thomas' recent celebration of the 30th anniversaryof his pardon and the fact that Mr Karam and Mr Bain had attended the celebration.The author then said:.. . Karam will do anything to manipulate events in his quest for aCompensation hand out ... [The author refers to journalist Pat Booth andscientist Dr Jim Sprott who were involved in the Thomas case] they did noteg seek Power of Attorney or 50/50 split or engage in media manipulationetc. And so it goes on. Incidentally who paid for Arthur Allan Thomas' tripto Christchurch for the retrial?[96]Mr Karam complains that these statements meant and were understood tomean that he lacks integrity and uses methods that involve a propaganda of lies,innuendo and fabrication. I agree that the ordinary meaning of the statements wasthat Mr Karam lacked integrity and would therefore do anything, including usingcynical or improper means to obtain compensation for Mr Bain, that he wascompared unfavourably with those involved in the Thomas case because he hadananged a power of attomey and a share of any compensation and also implied thathe had paid for Mr Thomas to go to Christchurch for the retrial as a means ofmanipulating the media. This post was defamatory. However, it also offered afactual basis for the opinions being expressed. Mr Karam acknowledged holding apower of attorney for Mr Bain. Although reference to the superceded agreement forhalf of the proceeds is inaccurate and does not provide a factual basis, Mr Karamacknowledged holding a power of attomey and I am satisfied that this alone providesa foundation for the opinion. The honest opinion defence succeeds in relation to thispost.CS 21- "Yahoo does it AGAIN"[97]This post, also by a third party, refers to a news report on the websiteYahoo.com which referred to Mr Bain as "a man who also knows what years ofwrongful imprisonment means". The author says:The article comes from NZPA- a reporter no doubt hand picked by karam... Perhaps legal action against [NZPA] as a deterrent to lie? karam is quickto throw out threats and this should be countered.[98]Mr Karam complains that these statements meant and were understood tomean that he lacks integrity. I agree. The implication these words carry is thatMr Karam interferes with or improperly influences journalists so as to secure untruestories in the media. The statements do have the flavour of expressions of opinionbut offer no foundation or factual reference that would supp01i the defence of honestopmwn.CS 25 and 26- "Karam gets 50 per cent ofincomeji-om case???"[99]This post by a third party said:That's an outrageous fact- I can't believe it! Joe Karam gets 50 per cent ofmoney from David Bain's proceeds from the case??? All along I've beenwondering why this guy keeps supporting David Bain despite the evidence.Thanks for that information, it's intriguing and it clarifies things for me.Great rugby player, great investor!![100] Immediately after that, Mr Parker responded by advising of a link relating to"Karam's income sources from the case" and then said:In many ways he is simply running this as a business.[101] The complaint is that these posts meant and were understood to mean thatMr Karam had misrepresented his motives for supporting David Bain and was doingso as an investment, to make money. I agree that the posts do carry that meaning.Further, the first post indicates the basis for the author's opinion as being the threadtitle suggesting that Mr Karam would receive 50 per cent of income from the case.The second post provides a link which would, if it contained conect information,have provided an adequate foundation.However, Mr Parker was not able todemonstrate the accuracy of the information contained in that link or the assertionthat Mr Karam would receive 50 per cent of the income from the case. As a result,the honest defence fails in relation to these statements.CS 36- "muddied waters"[102] This post is a promotion and comment on an online book "Muddied Waters".The description of it was:Brian gives a very good account of Karam's character and methods as wellas an analysis of the retrial from a legal perspective. He describes Karam'suncompromising style, his penchant for "obfuscating" the facts of the caseand his tendency to play "Justice" like a game of rugby using the rules of thegame to maximum advantage.[1 03] This is an expression of opinion about the book being described. It falls wellwithin the scope of honest opinion.CS 39 and 41- "the Court ofpublic opinion P5"[1 04] These two statements fmm pmi of an article (for want of a better word)posted on Counterspin:I have a name for the Joes of this world. I call them the "high grounders".They are the ones who claim the high ground of each argument. They arethe ones who generally precede a claim they make in the argument with aphrase such as "most thinking (or informed) people will agree that". Havingclaimed the high ground, woe betides anyone who disagrees with them.Unfortunately their strategies often ·work. The timid hearer or reader iscowed into submission and decides that whatever one, so smatt as to speakthat way, is saying must of course be true. Bullshit, or to put it morepolitely: "obfuscating".[The author then discusses the dictionaty definition of the word "obfuscate",including the fact that Joe Karam used it in one of his books].Unf01tunately for Joe the word is a two-edged sword, as capable of beingdirected at him as for him. His method of campaigning is to "obfuscate", toblacken evetything and evetyone in the opposing camp.[1 05] Mr Karam pleads that these statements meant and were understood to meanthat he lacked integrity and was dishonest. I consider that the meaning of the wordsis, self-evidently, that Mr Karam sought to mislead the public over the Bain casetlu·ough obfuscation and tlu·ough blackening those who did not agree with him. Iagree that these meanings do convey that Mr Karam lacked integrity and wasdishonest. Although there is mention in these statements of strategies and methodsused by Mr Karam, there is no specific example given, no indication either specificor general, of the basis on which the author concluded that the methods andstrategies were obfuscation. The defence of honest opinion therefore fails in relationto these statements.CS 53 and 58- "what is justice?"[ 106] On this page of Counterspin there is a lengthy article by Mr Parker thatdiscusses Mr Karam's reference in David & Goliath about the book, Death ComesAs the End, found beside Robin Bain's bed in the caravan and whether it might havehad any relevance to Robin Bain's state of mind. The author of the post says in thecourse of this atticle:The obvious conclusions that present themselves at the start of theprogramme or the beginning of an Agatha Christie novel never pan out. Thatis the essence of entertainment but real life is usually much morestraightforward. Perhaps Joe's real gift lies in writing fiction ...[Later in the same mticle the author referred to evidence about Laniet Bain'srelationship with her father not presented at the first trial] ...It is true that the hearsay evidence regarding Laniel's alleged relationshipwith her father was omitted from the first trial but there is more to the stmythan what Karam makes out.[107] Mr Karatn alleges that these statements meant that he lacked integrity andwas dishonest. As to the first, I consider it to be plainly an expression of opinion andplainly based on the author's view about Mr Karam's book David & Goliath. It is astatement that falls within the scope of the honest opinion defence.[108] CS 58 is different. The statement regarding the evidence about Laniet wasnot preceded by any discussion and is in the nature of a statement of fact not opinion.The author conveys that Mr Karam has withheld information about this evidence, theimplication being that he did so dishonestly. I consider that CS 58 is defamatory andis not a statement of opinion.CS 60 and 61 - "Joe Karam wears his defamation suit"[1 09] This article addressed the approach Mr Karam had made to the "Justice forRobin Bain group" about defamatory comments on the Facebook page. To put thestatements sued on in context I set out most of Mr Parker's comments; those whichare sued on emboldened:On Christmas Eve three members of the justice for Robin Bain group wereissued with a defamation warning Jl'om Joe Karam. This was not surprisinggiven the often provocatively defamatmy manner of some of the posts on theFacebook site and the way in which the site was represented in the press.The problem with Karam's defamation threat is that he was not able to citeany passages that he considered defamatmy ...What does it say about a person when they make a defamation tlu·eat and askyou to remove defamatory material when they are not able to cite theoffending comments? ...In response to his threats we have made the Facebook site private because itis very difficult to moderate or search the posts ...On the Counterspin site great care has been taken to screen out any contentthat is potentially defamatmy, even against David Bain, so it is not surprisingthat Joe Karam has not been able to cite anything. May be he made thatthreat before he actually looked at the content who knows. The onlyconclusion I can make is that he sought to bully and intimidate. Whatdoes this say about the man and his methods?While Karam did not cite any patticular comment or post he did say thatsomeone had made suggestions that he defrauded the legal aid system.Prior to this I had always thought that, while excessive, Karam's legalaid reimbursements were absolutely clean and pure and had never for amoment thought that he might have done anything dodgy. Now thethought that this may not be the case has been well and truly establishedin my mind by Mr Karam himself and I am having difficulty removingit.It is now almost a month since Joe Karam made his defamation threat andwe await with eager anticipation just exactly what we have said that isactually defamatmy and not simply fair and robust criticism ...[11 0] I consider that both statements are expressions of opinion and, further, thebasis on which they have been made are set out clearly in the body of the article.The honest opinion defence succeeds in relation to these statements.CS 65 and 66- Posts following the "where 's Joe's defamation suit now?" article[Ill] On 26 March 2010 the Counterspin posts record an editor's note that thethread had become too long and the posts increasingly inflammatory so "I havecalled it quits on anymore comments". Posts continued to be made over the next dayor so. On 28 March 2010 the issue of Mr Bain's application for compensation wasraised. At a fairly early stage in that discussion Mr Purkiss posted CS 65:An application or are they just discussing the possibility of making anapplication with SP?Justice].[Presumably Simon Power, the then Minister ofA discussion first up makes sense to me as I'm sure the MoJ would tell themif they are wasting their time as he would of [sic] had many discussionsabout this already with some people close to the case. He may be able to tellthem not to waste their money, sorry, I mean our money and time.The next major headline could easily be "Bain withdraws campoapplication" in which case the family had better be prepared for a claim forthe inheritance ... There could also be writs for defamation flying about asthey will want some dosh fi·om someone!!!It's always been about the money!!![112] Immediately following Mr Purkiss' post Mr Parker posted CS 66:Yes it is all about the money and that includes the media as well ...Karam knows full well that his case would fail an inquisitorial examinationby a QC ... His only bet at compensation is through some kind of specialcircumstance.[113] CS 65 does not specifically mention Mr Karam. However, looked at in thecontext of the preceding posts, particularly a longish post by Mr Parker two hoursprior to Mr Purkiss' post, it is obvious that the object of the comment was Mr Karam.Likewise, it is clear from the entirety of Mr Parker's post, CS 66, that he isdiscussing Mr Karam.[114] The complaint is that these posts conveyed that Mr Karam lacked integrityand was dishonest. I consider that the posts do convey, plainly, that Mr Karam wasmotivated solely by financial gain in his support of Mr Bain and that necessarilyconveyed that he lacked integrity or was dishonest. There is no indication, eitherspecific or general, to suppmi or to indicate the basis for these opinions. The honestopinion defence fails in relation to these statements.CS67-70[115] These three posts, all by Mr Parker, were made on Tuesday, 30 March 2010.CS 67 was a response to a previous post about defamation law:Ahr . . . nostalgia, the good old days. I think that you will find thatnewspapers in the past were just as, if not even more candid than you thinkthe internet is now. Defamation law was brought in to stop papers frommaking those very unfounded allegations that you describe so that peoplewith a lot more merit than Joe Karam could defend themselves from falseallegations.[116] Mr Karam says that this post meant and would have been understood to meanthat he makes improper threats of defamation proceedings to anyone who disagreeswith him. The statement is not specifically directed towards Mr Karam; he is used asan example of the point being made about the laws of defamation. However, asidefrom the muddled reference to someone in Mr Karam's position defendingthemselves (as opposed to as setting themselves through proceedings), I find that thestatement does convey that Mr Karam uses the defamation laws improperly. Sincethere is no indication in that post or in any of the preceding posts on that day or theprevious day to indicate the basis for the assertion, I find that the defence of honestopinion fails in relation to it.[117] CS 69 appeared later the same day in the context of a discussion aboutaspects of the evidence discussed in David & Goliath. Mr Parker posted:That book really should be in the fiction section.[118] There is no specific assetiion of meaning pleaded in the second amendedstatement of claim in relation to this statement. In any event, I consider that itsimply conveys the author's disagreement or non-acceptance of statements made inDavid & Goliath that have been discussed in the preceding posts. This statementwould attract the defence of honest opinion.[119] CS 70 was also posted on Tuesday, 30 March 2010 and was a response to thecriticism a post that said the objective of the site was tmclear. Mr Parker replied:The objective of this site is simply to counter the spin that Joe Karam hassupplied about the case ...[120] Mr Karam complains that this statement meant that he lacked integrity. Ialready formed the view in relation to CS 4 that a very similar statement fell short ofconveying that Mr Karam lacked integrity. It was an expression of opinion madeagainst the well-known background ofMr Karam's speaking and writing on the Baincase. I do not consider it to be defamat01y and I do consider it to be an expression ofhonest opinion.CS71[121] This post by Mr Parker on Wednesday, 31 March 2010, was part of anongoing conversation with the same person that criticised the Counterspin website.The conversation canvassed the various aspects of the evidence.Although theprevious posts had not mentioned Mr Karam, l'v!r Parker did turn his attention toMr Karam's pati in the retrial and concluded that:The other aspect of this case is the length to which Karam went to promotehis belief. Not only have there been several books but there was also a 37page promotional pamphlet. Now all of this is a reminiscent of a productcampaign; media appearances, books, pamphlets and Karam is anentrepreneur with a nose for a buck. He has used evety trick in the book tolly and lever a positive verdict out of this and along the way lined hispockets with various fmms of royalties, legal aid payments and defamationsuits.[122] The complaint about this statement is that it meant that Mr Karam lackedintegrity, had misrepresented his real motive for supporting Mr Bain and haddefrauded the LSA. I accept this allegation. The plain meaning of these statementswas that Mr Karam was motivated solely by money in seeking to ensme that therewas an acquittal at the retrial and had cynically used his writing and mediaappearances for financial gain.Fmther, it conveyed that he obtained legal aidpayments to which he was not entitled and issued defamation suits for which therewas no basis, all for financial gain. The statements were made against the publicknowledge ofMr Karam having received legal aid payments and having commenceddefamation proceedings. However, those facts provide a factual foundation for thecomments. I find that these statements were defamatory but that the defence ofhonest opinion succeeds in respect of them.CS72[123] This post by Mr Parker was made on Thmsday, 1 April 2010. It was pati ofan ongoing conversation about the evidence in supp01t of and against Mr Bain'sposition. Mr Parker said:. . . The only thing opposing or nullifYing the many points of evidence isKaram's completely untrained observations and insistent persuasions not tomention smoke and mirrors, fudging and smudging ...Again, more strands to the rope: Joe Karam is an entrepreneur. He is not asocial activist. He is not in this to uncover the truth. He is in this to win anddo something for himself not for society or the justice system.[124] Mr Karam complains that these statements meant and were understood tomean that he lacked integrity, had misrepresented his real motive for supp01tingMr Bain, had used a propaganda of lies, innuendo, fabrication, smoke and mitTors toadvance Mr Bain's defence.I agree with these characterisations.The ordinarymeaning of these statements is that Mr Karam misrepresented the evidence and wassolely motivated by money in his supp01i of David Bain.The meanings aredefamatory. They do not indicate any basis, specific or general, on which theseviews could be seen to have been founded. The defence of honest opinion fails inrespect of them.[125] This post, made on 7 April 2010 by a third party, was pmi of an ongoingconversation about the evidence at the two trials. This pmiicular post centred on thetime ofMr Bain's anival at home:Now the problem with my reconstruction was Denise Laney's sighting ofBain going through the gate at 65 Evety Street around 6.45. Why thedifference I asked myself. And, just like Karam, I tried to fudge. MaybeBain 's watch was slow. Maybe he forgot to pick up the paper at the gate ...[ 126] The allegation is that the statement conveyed that Mr Karam lacked integrity.The statement, read in its context, was defamatory. The discussion is a general oneabout the unce1iainties around trying to identify the precise time of Mr Bain's arrivalat home, and this provides no factual foundation for the assertion that Mr Km·mn'fudges'.CS75[127] This post by Mr Parker was made on 1 April 2010 shotily before CS 72 andin the context of the conversation about the various pieces of evidence. Mr Parkerhad posted a list of bullet points of evidence that he saw as suggesting that Mr Bainhad committed the murders and another series of bullet points suggesting that RobinBain may have done so. There was a brief intervening post and then Mr Parker said:I might also add that the Defence cooked up some story that Robin Bainwas "clinically depressed" which cannot be true because you cannot beclinically depressed while at the same time working fulltime and youhave to be diagnosed by a psychiatrist or a clinical psychologistfollowing a suitable examination. This stoty was generated by aneducational psychologist who testified decades after the crime that Robinappeared depressed during a school interview or session or something. SoKaram leapt upon this revelation to declare without grounds that Robinwas clinically depressed. He has been reported as such repeatedly in thepress ever since when it fact that is quite false. If Robin appearedsad/depressed at times maybe it was because of the situation at home andmaybe the behaviour of his eldest son contributed significantly to thatemotion.[128] The complaint about this post is that it is said to have meant that Mr Karamlacked integrity, was dishonest, a liar, that he used lies, innuendo and fabrication.The first sentence does not refer to Mr Karam. However, read as part of the entirepost there is no real doubt that the reference to defence is a reference to Mr Karam.That first sentence plainly suggests, by the use of the phrase "cooked up" thatMr Karam promoted the idea of Robin Bain being depressed knowing it to be untrue.However, it is evident from the rest of the post that this and the second statementsued on in the post were conclusions drawn from the report of Robin Bain havingappeared to be depressed. I consider that these statements are, in reality, expressionsof opinion and that the basis for them is indicated clearly in the statement itself. Thedefence of honest opinion therefore succeeds in relation to this post.CS83 and84[129] These two posts, one by a third party and one by Mr Purkiss, on 3 and 4 April20 I 0 relate to a repmi regarding the registrar of the Privy Council. The precedingposts were general discussions about the Privy Council hearing and retrial. The postCS 83 by a third patiy said:If you are in contact with the Privy Council why not ask for someinformation on Mary McDonald aka Parrot Woman, is she still on"gardening leave" or has she been dismissed. It could be ve1y interesting ifthis situation is related to the Bain case.She had a huge influence on the Law Lords, it almost seemed like she wasthe one who decided yes or no for the second trial.[130] The intervening post rejected that idea saying he was "not going there".Mr Purkiss responded:I understand you not going there regarding the Parrot Lady Mike as if they(the PC) are replying to you and being cooperative you don't want to upsetthem.But I, as you know, do think her "gardening leave" (dismissal) does havesomething to do with this case ...[131] These posts are said by Mr Karam to convey that he lacks integrity.However, Mr Karam is not mentioned at all in these posts. It is hue that Mr Karatnwas publicly linked with the Bain case and with the Privy Council appeal. But thereis simply nothing in either statement that could be read as a direct attack onMr Karam personally.CS85[132] This post by a third party on 6 April2010 said:Apart from the "not guilty" plea does anyone know if he has ever actuallysaid he didn't do it? JK keeps ttying to blame Robin, as far as I can recall Idon't think DB actually said that either. He also denied the incest betweenhis father and Laniet, that was another accusation by JK with no real basis intruth.[133] Mr Karam says that this post conveyed that he lacks integrity and I agree thatit meant or would have been understood to mean that Mr Karam made severalaccusations that, to his knowledge, were untme. Further, it is a statement that iscouched as a statement of fact rather than opinion. There is no indication, specific orgeneral, as to the basis for it. The defence of honest opinion fails in relation to thisstatement.CS86[134] This post by a third party was a peripheral contribution to a conversationbetween a number of contributors umelated to the Bain case but, rather, directedtowards an anonymous contributor whom others disagreed with. CS 86 said:Please don't get that Mr Aardvark dude mixed up with me ANTeater.I know the cap fits the son, not the slandered father and am firmly againstBaino and bad KarmaKaram getting another cent of ill-gotten gains.[135] This statement is sued on as one that is said to convey that Mr Karam lackedintegrity. I agree that it conveys that Mr Karam had received money from the Baincase which he should not have done. It conveys this as a matter of fact rather than anopinion. There is nothing in the statement to suggest that it was conclusory orsuggest any basis for the statement. I find that the statement is defamatory and thedefence of honest opinion does not apply.cs 89-91[136] This post was made by Mr Purkiss on 24 July 2009. This post came during aseries of comments regarding the apparent retmn of a contributor known asPlainjane.The contributor Plain Jane had offered some of the reasons sheconsidered the acquittal to be the right verdict. Mr Purkiss said:Jane I think you could be innocent. Either that or gullible. You have readtoo many ofjk's books and are now part of his cult!The Destiny Church would love you among their ranks. How many of yourhard eamed dollars have you donated towards the culprit's world travels?If the defence team thought they had a chance of getting yet more money outof the taxpayer they would of [sic] done it by now but they know they havefooled as many people as they are ever going to. db is destined to live therest of his days as a recluse and alone. Even overseas people go up to himand call him a murderer!!! jk done [sic] db no favours. IT WAS all aboutthe money!!![137] This was immediately followed by CS 90 by Mr Parker:Jane, news flash! Experts working for the Defence weren't doing so becausethey believed that David Bain was innocent or even Not Guilty. They madetheir testimonies because they got paid to and we understand many werepaid fares to fly from the other side of the world to turn up for the trial andoh, maybe do a bit of site [sic] seeing as well. That's how the system works.Karam went through more than $2 million of Legal Aid which gave himaccess to quite a bit of legal testimony ...[ 13 8] And again, several posts later in which another contributor commented on thenature of expert evidence, Mr Parker went on:Yes and it is exactly the kind of person like Jane whom Karam intended todeceive through his presentation of the "expert" Defence testimony.Maybe "deceive" is too strong a word. Anyway, in Jane's case ignorance isbliss. She is cettainly an interesting example of the effectiveness of a goodPR/propaganda campaign, the absolute antithesis of all the things that weshould have in a good justice system ...[139] Mr Karam sues on these statements, alleging that they were meant and wereunderstood to mean that he lacked integrity, had misrepresented his real motives forsupporting Mr Bain, acted improperly and counter to the interests of justice in doingso, had defrauded the LSA and used methods that involved lies, innuendo andfabrication.[140] Insofar as CS 90 is concerned, I consider the statement to be defamatory. Itconveys that Mr Karam lacked integrity and misrepresented his real motives forsupporting Mr Bain, with any factual foundation.CS 90 and 91 conveyed thatJ'v1r Karam used legal aid money for the improper purpose of securing umeliableexpert testimony from witnesses who would say whatever they were paid to say.These statements were defamatory. Further, CS 90 was couched very much as astatement of fact.Likewise, the reference to Mr Karam's "presentation" of the'expert' defence testimony" in CS 91 is also couched as a statement of fact ratherthan opinion and not amenable to the honest opinion defence.CS92[141] CS 92, posted by Mr Parker on 9 March 2010, was pm1 of the ongoingdiscussion between the third party Plain Jane, Mr Purkiss and Mr Parker followingseveral posts focused on what Robin Bain's death ce1tificate may have recorded asthe cause of death. In CS 92 Mr Parker discussed the difference between im10cenceand not guilty in the context of a criminal trial and went on to note that enors arecommon:... Joe Karam successfully used minor mistakes made in the first trial to getthe Privy Council to declare it a miscarriage of justice. Joe Karam is like theinsistent door-to-door shoe salesman that you finally given in to on his onehundredth visit to your door, after offering you all manner of discounts andpersuasive illustration, colourful brochures and endless family stories. Thatis all that Joe Karam is. He is not a legal professional. He does not have anyprofessional ethics he has to live by, yet he managed to suck $330,000 of ourtaxpayer money out of the legal aid system as a "legal representative" on$70-90 an hour. He is an expe1t in smoke and mirrors and he will playpeople like you until the day he dies. You don't seem to understand that hewas/is completely obsessed by this case in what is probably quite anunhealthy manner and is prepared to see it through regardless of the truth.He had sufficient money and high level contacts to ensure that the JusticeSystem would eventually give in and not hold Bain in jail and then provideonly a half-hearted Prosecution case ...[142] Mr Karam alleges that this post meant that he lacks integrity, misrepresentedhis real motives for supp01ting Mr Bain, acted improperly in relation to Mr Bain'sdefence, defi·auded the LSA and used methods involving lies, immendo, fabrication,smoke and minors.[143] CS 92 contains a mixture of opinion and statements of fact. I agree that thestatement does convey that Mr Karam lacks integrity, misrepresented his motive forsuppmiing David Bain, acted improperly in relation to the defence and used methodsthat involved smoke and mi11'ors. These were all expressions of opinion but withoutany indication as to a factual basis. The statement relating to legal aid is also anexpression of opinion by vhiue of the word "suck" which connotes obtaining moneythat he was not entitled to. However, it is plainly based on the public fact thatMr Karam had received substantial payments from legal aid. Mr Parker was entitledto express a view on whether those payments were justified. In that respect thedefence of honest opinion succeeds but it fails in relation to the other statementsmade in CS 92.CS94[144] This post by Mr Purkiss contained the following statement which seemedumelated to the conversation preceding it:I still think that Pan-ot Lady has some answers!!! You know Lee? The PCadviser that disappeared after they had heard jk's case. OOPS sony!! Imean db's case.[ 145] The complaint over this statement is that it meant that Mr Karam hadsomehow improperly influenced the Registrar of the Privy Council. I do not agreethat it does catTY that meaning. It is difficult to say what meaning was intended but Iam satisfied it was not defamatory. The claim fails in relation to this statement.CS96[ 146] This post by Mr Parker on 13 March 2010 was addressed to potentialwitnesses who did not give evidence:Yes, Koch and Buckley's evidence was not heard by the comi becauseKaram battled tooth and nail to get them suppressed because he wanted tomaximise his chance of getting a not guilty verdict by suppressing as muchof the evidence as possible ...If Karam represented the truth then there would have been no need to havethis evidence suppressed.[147] Mr Karam complains that this statement meant that he lacked integrity andwas dishonest. Both of these statements convey a factual position rather than anopinion. The assertion of the reason as to why this evidence was not heard, what theoutcome would have been had Mr Karam represented the truth. I find, too, that theyboth convey that Mr Karam did lack integrity and acted dishonestly in relation to thisevidence and that he actively sought to prevent the evidence from being adducedbecause it would risk a not guilty verdict. This was a defamatory statement and theclaim succeeds in respect of it.CS97[148] This post was one that Mr Parker made in December 2009. This post was thethird in a dialogue between Mr Parker and a third pmiy over Mr Karam's role in theBain case. In CS 97 Mr Parker referred to Paul Holmes' article about Joe Karam andwent on:In addition to the above you might also go here to see how much money hehas made out of the case. Essentially this is a career strand for him and themore he can draw in legal aid to fight his good fight the more he willcontinue. Apparently he is looking at another case in Dunedin ...In our opinion Joe Karam squeezed the justice system to the max to get whathe wanted and it had nothing to do with Justice or the Truth but solely to dowith Joe Karam getting what he wanted and winning.[ 149] Mr Karam alleges that these statements conveyed that he lacked integrity, hadmisrepresented his real motives for supporting David Bain and had defrauded thelegal aid system.[150] First, I consider both statements to be expressions of opinion. I agree thatthey do mean and would have conveyed to a reasonable reader that Mr Karam lackedintegrity and had continued his involvement in the Bain case for financial gain andthat his involvement had no relation to justice or truth. These were defamatorystatements. However, reference is made to the legal aid received by Mr Karamwhich provides a sufficient factual foundation for the opinion.honest opinion succeeds.The defence ofCS98[!51] This post was made by a third party on 12 March 2010:But what motivates Karam is the money to be made out of this massmurderer [David Bain]. Karam and David are from the same carton of eggs.[152] The complaint about this post is that it conveyed that Mr Karam lackedintegrity.I consider it to be an expression of opinion but one that is clearlydefamatory through suggesting that Mr Karam knowingly supported Mr Bain forfinancial gain. There is no factual basis and the defence of honest opinion fails.CS 105 and 106[!53] These posts by Mr Parker came during a conversation with a third pmty overthe possibility of compensation for David Bain. Mr Parker said:You say this: "Because the police didn't do a good job of gathering evidenceand testing it" and all that demonstrates is that you are prone to a good bit ofKaram's propagandaising ...[154] And later in that conversation a third party posted:If you have enough money you can buy yourself a set of expett witnesseswho will testifY to anything if the money's right. If I had a financial stake inthe compensation I'd invest in a few expett witnesses to spin a bit of a falsepicture. Speaking of which, will Karam be getting 50 per cent of anycompensation money? Heck, a bank would probably lend David the money,everyone knows you can buy this evidence ...[155] The complaint is that these statements meant that Mr Karam lacked integrity,was dishonest (CS 106), acted improperly in relation to the defence (CS I 06) andused methods involving lies, fabrication, smoke and mirrors (CS I 05).[156] I consider that CS I 05 does convey that Mr Karam attempts to persuade orinfluence people through untrue propaganda.I consider that CS 106, read as awhole, was a statement of opinion that suggested that Mr Km·am had paid expertwitnesses for false testimony. Although Mr Karam is not specifically identified inthe first sentence, the reference to the possibility of him getting 50 per cent of thecompensation and references in preceding posts to Mr Karam make it clear that itwas directed at him. There is no basis indicated for the statement and the defence ofhonest opinion fails in relation to both.CS107[157] Mr Parker made this post on 15 February 2010. The material provided doesnot show the preceding posts so I cannot comment on the context. However, theimpugned statements come towards the end of a reasonably lengthy post byMr Parker about aspects of the evidence and criticisms of the police investigation.He said:How would you like if I attacked your standard of work and whatever jobyou do with the full force of persuasive rhetoric and multiple publicationsand media presentations? Do you think that I will find you make mistakes?Yes, definitely I will. We all make mistakes. Joe Karam has made lots ofmistakes but no-one has as yet put it all under the spotlight. Further howwould you like it if I slatted saying unfounded and slanderous things aboutone of your dead relatives? Do you understand that if Robin was alive andthe allegations of incest made against him were tested in a defamation comtthat Karam would lose hands down? Because Robin is dead and you can'tdefend a dead person against defamation then Karam has been able topromote hearsay as "truth". Obviously you are one of the many who hasbought this story hook, line and sinker.Joe Karam has threatened to sue us for defamation. He has not cal'l'iedout with this threat, probably because there is nothing on this site whichwould pass the test in a court of law and because there are certainaspects of his behaviour that he doesn't want people to lmow too muchabout. If Karam was on the side of truth surely there would be no needfor these obviously empty and desperate defamation threats ...[158] The complaint about the emboldened pmis of the statement are that theyconveyed Mr Karam lacked integrity, was dishonest and made improper threats tothose who disagreed with him.[159] First, the statement "Karam has been able to promote hearsay as tmth" is, inmy judgment, an asse1iion of fact.It is made in the context of a number ofstatements regarding the effect of defamation law and ce1iainly conveys thatMr Parker knows the cmTect position and is asserting it.Further, although themeaning, strictly, is not defamatory, since hearsay evidence may well be tmthful, it isevident from the context that Mr Parker was using "hearsay" in a pejorative sense asmeaning second rate or umeliable evidence offered up as truth by Mr Karam. Iconsider that the statement was defamatory and the defence of honest opinion doesnot succeed in respect of it.[160] The second part of the statement is an expression of opinion insofar as itrelates to the speculation about why Mr Karam had not commenced defamationproceedings. They do convey that Mr Karam improperly threatened people withdefamation suits. On the other hand, it is an opinion based on the fact that, at thatstage, Mr Karam had threatened a defamation proceeding but had not yetcommenced the proceedings. In the circumstances that existed at the time, I considerthat the defence of honest opinion is made out.CS 110 and Ill[161] These two posts on 18 Febtuary 2010 were made by a third pmiy. They werepmi of an ongoing discussion involving the contributor Plain Jane whose postsgenerally attracted criticism from other contributors to this site. CS 110 said:Jane how do you know what was and was not accepted by the jury? Whatutter tosh! Complete speculation. The jury hasn't published anythingexplaining how they reasoned and decided on the evidence. I am sure youare JOE KARAM IN DRAG. That's the smt of preposterous crap I havebeen reading in his books (of fiction).[162] A little later the same contributor said:... Joe Karam has fed the public of New Zealand an absolute fiction bysaying that they were not able to get the evidence of incest into the first trial.If David Bain had evidence to give of incest there was nothing to preventhim giving that evidence at the first trial. The only evidence that wassuppressed by the comt was the "HEARSAY" evidence from Mr Cottle ...[163] It is said that these statements meant that Mr Karam lacked integrity and usedmethods involving propaganda, fabrication and lies.[164] In relation to CS 110, I regard that as an expression of opinion aboutMr Karam's books. The reader of a book is entitled to express a view about it and Iconsider the defence of honest opinion made out in respect of that statement.[ 165] In relation to CS 111, although it might be read as a statement of fact, in thecontext of the fairly long post that it forms pmi of, I consider it to be an expressionof opinion to the effect that Mr Karam had misrepresented the position regardingevidence of incest at the first trial. However, reading the post as a whole, includingthe statements immediately after the subject statement, I consider that the author hasgiven an indication as to the basis of his opinion and that the defence of honestopinion is made out in respect of it.The other websites[166] The fourth cause of action relates to the Trade Me and YouTube websites.These relate only to posts by Mr Purkiss. In the statement of defence filed on behalfof him and Mr Parker, Mr Purkiss admitted posting the comments that are sued onand admitted that they referred to Mr Karam. He denied that any were defamat01y.He also pleaded the affirmative defences of truth and honest opinion. As I havenoted, Mr Purkiss did not appear at trial to advance either defence. There is no basison which I could consider the truth defence on the evidence that I heard. However, Ido consider the honest opinion defence in relation to these statements.Ti·ade Me- ''poof- another Bain thread bites the dust"[167] In this Trade Me post, it is said:If jk releases a book it should be found in the fiction section like the othershe has written. Complete karamalisations!!!karamalisation equals "to fudge the facts"Karamalites equals "followers of jk and db"[168] This post followed a comment to the effect that books about the Bain casewould not attract much interest. The complaint about this statement is that it meantand would have been understood to mean that Mr Karam lacks integrity and usedmethods that involved a propaganda of lies, innuenda, fabrication, smoke andmnTors.The critical point of the statement is the use of the expression"karamalisation". I consider that it is defamatory to say of a writer of non-fictionthat he or she would "fudge the facts". That phrase is commonly understood to meanmisrepresenting the facts.I find that the use of "karamalisation" and as it isspecifically defined is defamat01y. Read as a whole the statement is one of opinionbut cannot fairly be said to be a literary criticism. I find that it is defamatory and thatthe defence of honest opinion does not apply.TM 2 - 5 "Bainaholics anonymous"[169] All of these posts were made within days of each between 12 January and 4Febmary 2010. They were part of a t1n·ead entitled "Bainaholics anonymous" thatattracted numerous posts. TM 2 and 5 were posted in relation to a discussion aboutaspects of the evidence. TM 2 was a response to questions posed by someone elseabout fingerprints. Mr Purkiss responded with answers and then added:Your [sic] karamalising the facts!!![170] TM 5 was posted a few days later in the context of a discussion aboutwhether there were scratches on David Bain 's chest. Mr Purkiss responded:You karamalites make me laugh!! You really grab at straws. Okay theactual picture of the itljuries to db's chest are proving difficult to find BUTstatements under oath are not good enough for you???Even then you are just like your leader and can't help but karamalise the factthat he DID have those injuries which looked important enough for boththose people to testizy about them ...[171] Mr Karam complains that these statements conveyed that he lacked integrityand used methods which involved lies, innuendo, fabrication, smoke and mirrors.[172] The statements are both, clearly, expressions of opinion. I find that TM 2 isdefamatory for the reasons I have already discussed in relation to the use of the word"karamalise". I find that TM 5 is also defamatory because it is an effective asseliionthat Mr Karam did misrepresent the facts. Neither offers any factual basis for theseassertions or opinions. The defence of honest opinion therefore fails in respect ofthem.[173] TM 12 and 15 are also statements that use the expression "karamalise" andvariants of it in a way that is defamatory and without indicated factual basis.[174] TM 16 said:Tell you the truth I'm actually now starting to feel really sony for dbbecause the likes of you and karam have taken away from that guy anychance he had of living a normal life! He may of [sic] done his time, comeout as quite a normal guy, settled into a good job etc and contributed tosociety. But not now!! The likes of you lot have screwed it for him."Show me the money!!!" "Screw justice!!!"[175] The complaint about TM 16 is that it conveyed that l'v!r Karam lacks integrityand has misrepresented his real motives for assisting David Bain. However, I am notconvinced that the statement does read as though directed specifically towardsMr Karam. As a result, I do not consider that it is actionable by Mr Karam.[176] TM 17 said:Plenty of murderers have returned to some sort of normal life after doingtheir time. db is being used to make a profit, nothing more nothing less,much the same as a lot of Karamalites. Hey he was only a young guy andprobably never met anyone like jk before. He would of [sic] been ve1yimpressionable so when some famous ex-All Black comes visiting withpromises of freedom and money he would of [sic] had his hopes boosted skyhigh.Well that relationship has screwed him for life no matter what the finaloutcome! !![177] Read as a whole I consider that the statement complained of is an expressionof opinion and does mean, as alleged, that Mr Karam lacks integrity and hasmisrepresented his motives for assisting David Bain. It is defamatory. There is noindicated basis for the opinion and the defence of honest opinion fails in respect of it.[178] TM 19 said:I wonder what jk's and his "product range" are doing this morning? Churchmaybe?[179] The complaint is that this statement conveyed that Mr Karam hadmisrepresented his real motive for supporting David Bain. The material provided tome did not adequately show the context in which that statement was made,apparently as a result of edits to the website. As a result, I can judge this statementonly as it appears in isolation and I do not consider that it conveys anythingdefamatory about Mr Karam.TM22and23[180] These posts on 25 and 27 January said:Seriously do Karamalites think just because they may be able to karamalisethe law to fit their own agenda that it will be just the thing to reward db andkaram? Apart fi·om comments like "Robin dunnit" or "db didn't do it" theydon't say anything about real justice. No matter how one karamalises the"law" it would not be right or just for a person that the evidence indicatescommitted this obscene crime be rewarded.[181] TM 23 said:The depth these Karamalites will sink to are disgusting and disturbing butthen we know where their instmctions are coming from so it is notsurprising.[182] The complaint is that these statements conveyed that Mr Karam lacksintegrity, used methods that involved lies, innuendo, fabrication, smoke and minors.I have already discussed the use of the word "karamalise". I consider that it, and"Karamalite" are used as pejoratives to convey the misrepresentation of facts orevidence and describe a person who does so.The use of the word in thesestatements canies a strong meaning that Mr Karam has not only used these methodshimself, but has influenced others to do so. There is no specific or indicated basisfor the opinions expressed and the defence of honest opinion fails.TM27-30[183] These posts were all made between I and 4 February 2010. They said:db's only waiting because he is being told to wait, he has no place in thedecision making. He is a commodity being used to make a profit. Did I see$4 million mentioned before? It won't happen but if it did he would noteven get half of this amount. In the unlikely event a reward is granted hewon't even end up with $500.000! jk should do alright though as after hehas his share as agreed by db he then has his book (should sell about fourcopys [sic])!!! Profits which dear old db is not entitled to any of. db's sharewill equate to less the $650 per week reward. This will not be enough forhim to disappear with and lead some smt of normal life. DB!!! WAKEUP!!! Your [sic] being used by people that want the money!!![184] TM 28 said:db was never wrongly imprisoned. He was found guilty by a jury andsentenced. Being imprisoned for murder is pmt of our legaVjudicial system!Sound familiar? He has, howeve1~ been wrongfully released due to ourlegal/judicial system making a few mistakes e.g. not allowing the jury tohear all the evidence, allowing someone whose sole purpose for beinginvolved was/is profit not justice etc etc ...[185] TM 29 said:What did the Melbourne Armourer say again?Didn't jk ask for his opinion. Oh yeah that's right!! He said it was notsuicide butjk didn't like that so did not use it.[186] TM 30 said:Where is db hiding anyway? If as some posters on this board DO NOT thinka majority of the population believe him guilty why is he hiding from thepublic?? Could it be he is being held "captive" by his own "suppmters"?Suppmters whose only intreast [sic] is profit. david Wake up! It's only yourmoney they are after.[187] I accept, as alleged, that these statements meant and were understood to meanthat Mr Karam lacks integrity and has misrepresented his real motive for supportingDavid Bain. Although expressions of opinion, I do not consider that there was anyeither specific or general foundation for the opinions being expressed.TM40[188] This post on 23 March 2010 focused on the possibility of compensation beingpaid to Mr Bain. At the beginning of the post Mr Purkiss expressed the view that"Bain inc" would be "realising the commercial potential of the case" and made theobservation that if supporters of Robin Bain kept the issue alive they were assistingin this process:There's two sides to eve1y stmy so don't be surprised if the other camp hassomething up their sleeve to counterspin anything the Baht camp comes upwith. A stmy that deals iu factual evidence instead of things that may of[sic] happened should be much easier to produce. But then I suppose db'sstory [sic] have to be truthful to make a dollar and let's face it that is allit's been about from the start as far as his defence has been. SHOW METHE MONEY!!![ 189] As with other similar posts by Mr Purkiss the complaint is that this statementmeant and would have been understood to mean that Mr Karam lacks integrity andhas misrepresented his real motive for suppm1ing Mr Bain. I am not satisfied thatthe statement does have this meaning because there is no mention of Mr Karam.One would have to read the preceding reference to "Bain inc" as a reference toMr Karam but I do not think that is the ordinary meaning of the statement.TM41 and42[190] Following a post that mentioned Mr Bain having been seen in a restaurant,Mr Purkiss referred to the use by the British during World War II of doubles, notingthat "even Churchill had a double" and then went on:So I am wondering if the barstards [sic] have done the same????A db double!!!! While he lives the high life somewhere exotic like Beirut?Perhaps the person with jk was Ron Hubbard?[ 191] The complaint about this post is that it meant that Mr Karam lacked integrityand used methods involving lies, innuendo and fabrication.[192] I am not satisfied that these are the meanings conveyed by this statement.The statement is almost nonsensical but I do not think it is directed towardsMr Karam with the kind of meaning that is alleged.TM42[193] On 4 April 2010 Mr Purkiss posted a comment about Mr Karam not havingpublished any new book and went on:Of course there's no book. He needs this last chapte1; that being the campoclaim, which by the way I believe has been timed to hopefully coincide withthe christmas rush for books.This whole thing between db and jk is a marketing plan based on one thingand one thing only. Money!!!!! ...[194] The complaint about this post is that it meant that Mr Karam lacked integrity,had misrepresented his real motives for supporting Mr Bain.[195] I agree that this is the ordinary meaning of the words. The statement is anexpression of opinion but there is no apparent foundation offered for it.TM43[196] On 7 April 20 I 0 Mr Purkiss referred to the Counterspin website and theFacebook page and added:Once again joe "you can fool some of the people some of the time, you canfool all of the people some of the time but joe YOU can't fool all of thepeople all of the time".[197] Mr Karam complains that this statement meant that he lacks integrity. I agreethat its ordinary meaning conveys that Mr Karam had attempted to mislead peopleand that inevitably that would cany with it the meaning that lie lacks integrity. It isan expression of opinion without any foundation offered.YouTube[198] Mr Purkiss is also sued in respect of one post on YouTube that said simply:Murdering barstard [sic] and his pimp.[199] This statement was made in the context of a video about Mr Bain andMr Karam.Mr Karam complained that this statement conveyed that he lacksintegrity.[200] The ordinary meaning of this statement is that Mr Karam was to be comparedto a pimp. I accept that this comparison would convey that he lacks integrity. It isclearly an expression of opinion but one without any basis indicated.Were the statements made on occasions of qualified privilege?[201] Mr Parker raised the defence of qualified privilege, arguing that Mr Karam'sinvolvement in the Bain case is a matter of public interest and those who contributedto the sites had a shared interest in debating the issue. For the reasons that follow Ido not accept that the circumstances of this case satisfy the requirements of thequalified privilege defence.[202] It is in the public interest to recognise certain occasions as ones when peoplemay express themselves freely without being exposed to suit for defamation. Thedefence of qualified privilege protects those who make defamatory statements onprivileged occasions, provided they are not predominantly motivated by ill-will anddo not misuse the occasion. The classic statement of what constitutes a privilegedoccasion is that of Lord Atkinson in Adam v Ward: 27... a privileged occasion is ... an occasion where the person who makes acommunication has an interest or a duty, legal, social or moral, to make it tothe person to whom it is made and the person to whom it is made has acorresponding interest or duty to receive it. This reciprocity is essential.[203] In Lange v Atkinson the Court of Appeal summarised the requirement for acommon, and cotTesponding, duty and interest between the maker of the statementand those who received it (the "familiar duty/interest test") in this way:28[20]A privileged occasion thus had to be an occasion in which theduty/interest was satisfied. If in the circumstances that test was satisfied, theoccasion was capable of being regarded as one of qualified privilege. Butdespite a communication being made between persons who might in othercircumstances have shared an interest in the subject matter it could happenthat the maker and recipient of the statement did not in the particularcircumstances of the publication have the necessaty interest or duty to satisfYwhat we are calling the shared interest test.[204] The requirements of the duty/interest test mean that general publication doesnot usually attract privilege and the nature of the Facebook page and Counterspinsites mean that comments posted on them are to be regarded as general publications;the sites were accessible to the public generally and even after the Facebook pagewas made private significant numbers of people still had access to it and newmembers could join.[205] Exceptions are, however, recognised by the common law and the DefamationAct 1992.They include the fair and accurate reporting of the proceedings ofParliament and the courts. There has been a historical reluctance to accept thatgeneral publication of other matters should be protected. Nevertheless, it has alsobeen recognised that the types of occasions that might justify protection are notclosed. The tmth of this was shown by the Court of Appeal's decision in Lange v2728Adam v Ward[1917] AC 309 (HL) at 334.Lange v Atkinson [2000)3 NZLR 385 (CA) at 393.Atkinson, which recognised that the general publication of political statements couldbe protected by qualified privilege. 29[206] Lange v Atkinson held that the defence of qualified privilege could beavailable in respect of statements published generally and, further, that it waspossible for the wider public to have a proper interest in statements about the actionsand qualities of those curr-ently or previously elected to Parliament or those withaspirations to such office so far as those aspects affected their capacity to meet theirpublic responsibilities.As a result, general publication of statements directlyconcerning these aspects could be a privileged occasion. However, the fact that astatement addresses this subject does not, in itself, confer privilege; that still dependsupon an assessment of the circumstances of a publication, including matters such asthe identity of the publisher, the context in which publication occurred, the likelyaudience and the actual content of the information: 30A statement the subject-matter of which qualifies for protection is not by dintof that fact alone always made on an occasion of privilege. Ordinarily thatwill be so because the shared interest test is likely to be satisfied. But theremay be times when a communication within that subject-matter will not bemade on an occasion of qualified privilege because there is in the patticularcircumstances no shared in interest in the patticular communication betweenits maker and recipients ... The requirement for the occasion to qualifY aswell as the subject-matter, may sometimes lead to difficulties at the margins,but in reality there is likely to be comparatively little uncertainty in this area.Any bona fide communication in the course of political discussion andwithin the defined subject matter is very likely to be made on an occasion ofqualified privilege. The possibility of the occasion not attracting privilege Isunlikely to cause difficulty for news media organisations or indeed otherwho are engaged in genuine political discussion. Such possibility, and thesmall level of uncettainly it may cause is a necessary price to pay to guardreputations against false imputations made on occasions which are outsidethe purpose of the privilege; albeit within its literal subject-matter.[207] Plainly, the issue of Mr Karam's involvement in the Bain case does not fallwithin the parameters recognised by Lange v Atkinson as a subject that might attractthe requisite duty and interest, in the context of a general publication, to create aprivileged occasion.2930At [10], [41].At [21].[208] In cases that fall outside the already established occasiOns m which theprivilege arises it is a question for the Court, having regard to all the relevantcircumstances as to whether an occasion should be regarded as privileged.InVicke1y v McLean Tipping J observed that: 31When the Comts are asked to find that a particular occasion, not directlycovered by authority, is one which should attract qualified privilege, theultimate question is whether it is in the public interest to recognise theprivilege and strike the balance between freedom of expression andprotection of reputation accordingly.[209] In Vickery v McLean (which involved statements made by the chairman of alocal ratepayers association about employed officers of a district council) the Comtof Appeal declined to consider whether Lange v Atkinson should be extended tocover political discussion in the context of local govemment on the ground that, evenif it were so extended the circumstances of the case would not attract privilege.Similarly, in cases before this Comt in which it has been suggested that the effect ofLange v Atkinson should be extended further, 32 none has actually reached aconclusion; the issue is usually avoided because it is evident that, even if privilegeexisted, it would have been lost because of the predominant motivation of ill-will orimproper use of the occasion through recklessness.[210] Privilege for statements posted on websites established to facilitate the freeexchange of ideas on matters that interest members of the public would go wellbeyond anything previously recognised in New Zealand, even including previouscases in which the possibility of an extension to the defence has been considered.Dooley v Smith, for example, concemed comment on issues arising in the context oflocal government. Lang J noted that those who were the subject of the statements inquestion were elected to positions in other public institutions? 3 I respectfully agreethat this context is sufficiently analogous to the current protection provided forpolitical expression that extending the defence to it could properly be considered.But local govemment issues are far removed from the subject-matter in this case. 3431323334Vicke1y v McLean [2006] NZAR 481 (CA) at [15].See e.g. Dooley v Smith [2012] NZHC 529, reversed by Smith v Dooley [2013] NZCA428.At[171].I do not include Lee v The New Korea Herald Ltd High Court Auckland CIV-2008-404-5072, 9November 2010 as a case in which serious consideration was given to whether the occasion wasprivileged; Heath J went directly to the issue of ill-will under s 19.[211] Futiher, the nature of online fora such as Facebook differs significantly fromthe traditional media model. In the traditional model the media, which has access toinformation not generally available, informs the public. In comparison, the fonnat ofthe Facebook page means that the same people are both publishers and recipients;there is no reciprocal duty and interest but merely an exchange of views.[212] In some respects the Counterspin website more closely resembles thetraditional model because it was set up, in part, as a vehicle for Mr Parker and his cohost to inform readers about aspects of the case. However, even to that extent, theremust be serious doubt as how this format would justify treating Mr Parker's atiiclesas privileged. Mr Parker's work was never predicated on the basis that he had anygreater knowledge or access to any more information than other members of thepublic. He was the host of a site on which he could express his opinions but I do notaccept that he was under any duty to do so.[213] Further, Counterspin also served as a fomm similar to that of the Facebookpage, where any member of the public could join and express his or her views.Indeed, most of the statements sued on were not pati of Mr Parker's informativepages but from posts to online discussions. These discussions were not prompted byany duty to inform nor any interest in receiving in the sense that would create aprivileged occasion for the purposes of the qualified privilege defence.[214] In these circumstances I do not consider that statements made on either theFacebook page or Counterspin were made on occasions of qualified privilege. Thisdefence therefore fails.[215] I would add, however, that, even if it were m·guable that the statements weremade on privileged occasions, the defence would be rebutted under s 19 whichprovides that: 35(1)In any proceedings for defamation, a defence of qualified privilegeshall fail if the plaintiff proves that, in publishing the matter that isthe subject of the proceedings, the defendant was predominantlymotivated by ill-will towards the plaintiff, or otherwise tookimproper advantage of the occasion of publication;35Defamation Act 1992, s 19.(2)Subject to subsection (I) of this section, a defence of qualifiedprivilege shall not fail because the defendant was motivated bymalice.[216] "Ill-will" captures conduct that would have been malicious at common law,being the knowledge that the subject statement was false or recklessness as towhether it was tme or false. 36 "Improper advantage" extends the conduct beyond illwill and is a lower threshold than knowledge of the statement being false orrecklessness as to its tmth or falsity. In Lange v Atkinson the Court of Appeal said: 37Indifference to tmth, is, of course, not the same conceptually as failing totake reasonable care with the tmth, but in practical tetms they tend to shadeinto each other. It is useful, when considering whether an occasion ofqualified privilege has been misused, to ask whether the defendant hasexercised the degree of responsibility which the occasion required ...What amounts to a reckless statement must depend significantly on what issaid and to whom and by whom. It must be accepted that to require thedefendant to give such responsible consideration to the truth or falsity of thepublication as is required by the allegations and the width of the intendeddissemination, may in some circumstances come close to a need for thetaking of reasonable care.[217] In Lee v The New Korea Herald Ltd Heath J considered that, if the defence ofqualified privilege had been available, it would have been defeated by thedefendant's failure to take reasonable steps to verify the information provided andthe failure to make adequate attempts to contact the plaintiff before publication? 8Likewise, in Dooley v Smith, Lang J considered that improper advantage had beentaken of the opportunity to publish because the defendants had been reckless, therebydefeating any qualified privilege defence. 39[218] It will be apparent from my discussions of the various statements sued onthat, in respect of those I have found not to have been honest opinions, there couldhave been no genuine belief in the sense of a belief with any factual foundation inwhat was being said. I also consider that, had there been a privilege attaching topublications on these websites (which I have already rejected), improper advantagewas taken of the occasion of publication.36373839Horrocks v Lowe [1975] AC 135 (HL) at 150.Lange v Atkinson above n 28, at [46]- [48].Lee v The New Korea Herald Ltd, above n 34.Dooley v Smith, above n 32, at [207].[219] The nature of online sites such as the Facebook page and Counterspin catTythe potential for greater harm than traditional forms of publication because of theimmediacy and breadth of their reach and the fact that they remain accessibleindefinitely.Furthe1~they can be manipulated so as to make them more visible tomembers of the public; in some of his posts on Counterspin, Mr Parker boasted ofhaving ensured that the Counterspin website was one of the first websites thrown upin a Google search of"David Bain" or "Joe Karam".[220] Publishers of statements on such sites need to exhibit a degree ofresponsibility commensurate with the immense harm that can come from the misuseof them. In this case the power to publish to so wide an audience was undoubtedlyabused through the intemperate and untrue content that Mr Parker, Mr Purkiss a11dothers posted.Even if the subject matter and occasion had been capable ofprotection through qualified privilege, the defence would have failed.DamagesMy approach to fixing damages[221] The damages claim was not quantified in the pleadings but in closingMr Reed submitted that both compensatory and exemplary damages were warrantedand sought global figures of $1.25m and $500,000 against Mr Parker and Mr Purkissrespectively.[222] Mr Reed framed the claim for global figures by reference to the Court ofAppeal's emphasis in Siemer v Stiassny on the totality of the award rather than theindividual components of it. 40 However, punitive damages are different in kind fromcompensatory damages and subject to a specific statutory test. I do not consider itright to adopt a global figure that reflects both compensatory and punitive damages.I therefore address the compensatory and punitive aspects separately.[223] Mr Reed also suggested that the same figure be awarded in respect of eachcause of action against Mr Parker with the intention that it be treated, using thesentencing analogy, in the same way as concurrent sentences. I do not accept that40Siemer v Stiassny [2011] NZCA 106, [2011]2 NZLR 361.this is the right course. First, some of the statements for which Mr Parker is liable aspublisher are also ones for which Mr Purkiss is liable as author. Some adjustment isneeded to avoid double-counting in respect of those statements. Secondly, slightlymore than half of the statements for which Mr Parker is liable were posted by thirdparties (other than Mr Purkiss). In the event that the issue ofMr Parker's liability aspublisher is considered on appeal it would be desirable for the damages attributableto those posts to be readily identifiable.[224] I therefore intend to approach the assessment of damages in the followingway. I consider first consider what figure is appropriate to compensate Mr Karamfor the injury suffered as a result of the cumulative effect of the statements. I thenapportion part of that figure to the small number of posts for which the defendantsare jointly and severally liable (Mr Parker as publisher and Mr Purkiss as author).The balance will be allocated between Mr Parker and Mr Purkiss based on theirconduct and the proportion of statements for which each is liable.Compensatmy damages[225] General damages in defamation are directed towards the injury sustained as aresult of the damage to the plaintiff's reputation. In Siemer the Court of Appealsaid: 41... Losses sustained which are normal and to be anticipated when a person'sreputation is impaired. When that occurs such an offence affects one'srelations with others which could be in business, social, religious, familial orother contexts. The impairment of one's relations can interfere in quiteunpredictable and unknowable ways for the enjoyment of life and, therefore,the common law took the view that in such an action damages may beawarded by the Judge or jmy without proof by a plaintiff that there has beenany impairment of reputation. To put this another way, at common lawgeneral damages are an estimate, however rough, of the probable extent ofactual loss a person has suffered and will likely suffer in the future. That isso despite the fact that such loss cmmot be identified in terms of, say,advantageous relationships lost, whether from a monetaty or what might betermed enjoyment of life standpoint. And, since the interests served by wayof protecting a good reputation are of a diguitary and peace of mindcharacter it is relatively obvious that such damages are ve1y difficult tomeasure in monetary terms.41At [48].[226] The recognition of additional hatm done through the defendant's manner ormotive, although sometimes treated as separate head of "aggravated damages", ismore usually viewed as enlarging the quantum of general damages rather thanjustifying a separate head of damage. 42 This is the approach that I adopt.[227] I find the following factors relevant in assessing the appropriate level ofdamages.First, Mr Karam enjoyed a significant and positive reputation beforebecoming involved in the Bain case. He already had a high public profile as a resultof his successful sporting career. He had subsequently enjoyed success in business.Character evidence attests to the fact that he was highly regarded for his integrity,generosity and altruism.[228] Secondly, the effect on Mr Karam of the statements posted on the Face bookpage, Cotmterspin and other websites was significant. I accept Mr Karam's evidenceof the great distress he felt about the things being said about him. He described theperiod during which these statements were posted as the worst four years of his lifeand I believe him. I accept the evidence of other witnesses, such as Richard Karam,Peter Williams QC and Lorraine Day, who described how Mr Karam becamepreoccupied, unsociable, and visibly distressed during this period.[229] Thirdly, I accept Mr Reed's description of the defamation as being a full scaleassault on Mr Karam's reputation. The defendants and others accused Mr Karam of,among other things, dishonesty in his motivations, lack of integrity in his dealingswith expert witnesses, fraud in relation to the LSA, lack of integrity in his motivationand dealings with David Bain. Few aspects of Mr Karam's reputation were leftuntouched.[230] Foutihly, the scale and persistency of Mr Parker's and Mr Purkiss' effmis todiscredit and undermine Mr Karam seriously exacerbated the damage being done.Not content with merely expressing their views and indulging in online discussionabout a topic that interested them, Mr Parker and Mr Purkiss took steps to raise theprofile of the Facebook page and the Counterspin site by giving an interview with42Midland Metals Overseas Pte Ltd v The Christchurch Press Co Ltd [2002)2 NZLR 289 (CA) at[61); Manga v The Attorney-General [2000) 2 NZLR 65 (HC), discussed iu Siemer v Stiassny,above n 40.the Sunday Star Times newspaper about the purpose of the site.The result,inevitably, would have been a greater number of people than previously visiting thesite.In addition, by his own admission, Mr Parker took steps to ensure thatCounterspin's profile was raised even higher by ensming that it appeared earlier inGoogle searches than other sites dealing with the Bain case.[231] Fifthly, Mr Parker and Mr Purkiss both pleaded truth as an affirmativedefence. Having pleaded it Mr Pmkiss then did nothing further, leaving Mr Karamto reach the point of trial before having confirmation that Mr Purkiss would notattempt to sustain the defence. Even worse was Mr Parker's assettion of the truthdefence up to and during the trial until finally, under cross-examination, he acceptedthat he could not prove the truth of the assettions he and others had made andabandoned the defence. By then Mr Karam had already given evidence and beensubjected to cross-examination by Mr Parker.[232] Although Mr Purkiss was responsible for some egregious remarks, I treat himas less culpable than Mr Parker for two reasons. He is liable only for his own postsand is therefore responsible for much less of the defamatory content than Mr Parker.Also, as Mr Reed accepted, Mr Purkiss largely refi·ained from making fmtherdefamatory remarks after the proceedings were issued.[233] Mr Parker's conduct, on the other hand, encompasses both his own posts andthose of others. Although it is evident that in many of his posts he attempted topromote a rational debate he was also responsible for some very bad defamation. Inaddition, he maintained his position until well into the trial.Under cross-examination Mr Parker did agree that his behaviour had been disgraceful and offeredan apology. However, the lateness of the apology and Mr Parker's conduct of hisdefence significantly undermined the value of it.[234] Finally, I take into account two recent awards in judge-alone cases.Comparison with other cases always requires care because of the relatively few casesthat come before the courts and the variety in the circumstances of such cases.Neve1iheless I consider that the decisions in The New Korea Herald v Lee,43 andSiemer v Stiassny to be of assistance. 44[23 5] In Lee the defendants published eight articles that suggested that the plaintiffwas engaging in corrupt, dishonest and immoral practices. 45 Publication was limitedto the local Korean community and the newspaper had a circulation of about 3,000.The plaintiffs were awarded $250,000 in compensatmy damages. Although there issimilarity in the nature of the defamatory meanings the more limited scope of boththe content and reach of the publications means that the present case is to beregarded as significantly worse.[236] In Siemer v Stiassny, Cooper J's total award of $825,000 was upheld onappeal. 46 Within that total Cooper J had identified the figures of$650,000, $150,000and $25,000 for general, aggravated and punitive damages respectively. The Comiof Appeal considered that, despite some difficulties in allocating separate figures inthis way the total was appropriate.I proceed on the basis that compensatorydamages of $800,000 was appropriate for the defamation in that case.[237] Mr Reed submitted that factually there were parallels between the presentcase and Siemer but that the present case was worse; although both involved apersistent online campaign with extreme allegations regarding the plaintiff'sintegrity, Mr Karam had to endure a week-long trial 47 (including the indignity ofbeing cross-examined by Mr Parker), 48 Mr Karam had a higher public profile and asa result of the Sunday Star Times interview the exposure of the defamatorystatements was far wider.Siemer involved one individual, whereas Mr Parkerencouraged others. Mr Reed also pointed out that in Siemer the Comi took intoaccount the fact that Mr Siemer had already been punished through penaltiesimposed for contempt.434445Lee v The New Korea Herald Ltd above n 34.Siemer v Stiassny above at n 40.Lee v The New Korea Herald Ltd above n 34.46Siemer v Stiassny, above n 40.47Mr Siemer had been debarred fi·om defending the proceeding and the matter proceeded by wayof fonnal proofMr Parker was unrepresented and his cross-examination was (understandably) inept.48[23 8] Without minimising the distress that the statements in this case have causedto Mr Karam, however, I am satisfied that this case is not as bad as Siemer. Thestatements in Siemer were an outright and vindictive attack on the integrity of aprofessional person. There was a racial aspect to some statements. The motive wasvengeance. The extent of publication was wider because, in addition to a website,defamatory statements were published via a billboard that would be seen by thegeneral public, complaints to professional bodies, complaints to the Serious FraudOffice, stickers and posters. Publication increased over time and was maintaineddeliberately in the face of an injunction. It had a significant impact on the plaintiffand on his professional and personal life. The effect of the defendant's actions ledthe plaintiff to serve trespass notices to protect his home and family.[239] In comparison, the statements published by the defendants in this case wereavailable mainly to those who sought out the Facebook page and Counterspinwebsite; the Sunday Star Times article did provide a link to the Facebook page butthat did not significantly extend the scope of publication. Although there were someeffects on the business owned by Mr Karam's son (and previously by Mr Karam) thisaspect was relatively limited and did not reach the level that, for example, wouldhave justified a trespass notice being served.[240] I judge the circumstances of this case to fall between Siemer and Lee, slightlymore towards Siemer. Adjusted for inflation, the awards in Lee and Siemer would be$260,000 and $880,000 respectively. Taking all the factors I have discussed intoaccount I consider that a figure of $525,000 would fairly compensate Mr Karam forthe injury caused. I turn now to consider the allocation of this figure between thedefendants.[241] I have found that there were approximately 50 defamatory statements madeabout Mr Karam for which there is no defence. Of these, a small number are onesthat Mr Pmkiss posted on the Facebook page and Counterspin and for whichMr Parker and Mr Purkiss are jointly and severally liable as joint tmifeasors(Mr Pmkiss as author and Mr Parker as publisher).I allocate $55,000 to thesestatements. There is no cross-claim between the defendants. In order to give asingle award for compensatory damages against each defendant I consider the mosteffective course is to split this figure equally between them.[242] Of the remaining statements about two-thirds are ones for which Mr Parkeralone is liable either as author or publisher. This propmiion also fairly reflects thegreater responsibility that Mr Parker should take for the i!1iury to Mr Karam'sreputation. This means that Mr Parker is liable for $313,000 together with $27,500relating to the five statements discussed above, a total of $340,500. I allocate aquatier of this figure to each of the first and second causes of action and half to thethird cause of action. The result is that there will be judgment of $85,125 on each ofthe first and second causes of action and $170,250 on the third.[243] This leaves the statements for which Mr Purkiss alone is liable as author.These statements represent about one-third of the defamatory statements for whichthe defendants are separately liable. There will be judgment against Mr Purkiss onthe fomih cause of action for $157,000 together with $27,500 relating to thestatements discussed at [241], making a total of$184,500.Punitive damages[244] The purpose of punitive damages is to punish and deter. Such damages arelimited by s 28 to cases where the defendant has "acted in flagrant disregard of therights of the plaintiff'. In Siemer the Comi of Appeal said of this test: 49... The question is simply "[did] the defendant act in flagrant disregard ofthe rights of the plaintiff?" Of course, if one acts in flagrant disregard thedefendant will routinely have a mental intent or motive which would, in anyevent, satisfY the now New Zealand common law test.[245] There is one aspect of Mr Parker's conduct that I consider amounted toflagrant disregard of Mr Karam's rights. Mr Parker knew defamatory commentswere being published on Facebook and encouraged it to continue.AlthoughMr Parker did make an effort to "clean up" the sites, it is obvious fi-om his commentsthat his concern was not so much to limit the damage being done to Mr Karam'sreputation but rather to limit the exposure that he faced. His suggestion in a post on49Siemer v Stiassny, above n 40, at [65].14 January 2010 on the Face book page that those who wished to "be controversial ordefamatory" to do so on Facebook was encouragement to indulge in posts of thatkind.[246] I award a separate amount of $10,000 as punitive damages. Because theseactions related to the continued publication of defamatory material on the Facebookpage this head of damages is to be allocated to the first cause of action.Injunction[247] Mr Karam also seeks an injunction requiring the offending material to beremoved and a permanent injunction preventing the defendants fi·om furtherpublishing material defamatory of him. I am satisfied that this relief is necessary. Inparticular, it is of considerable concern to me that, following his advice in open courtthat the Counterspin website would be taken down, Mr Parker has since resurrectedit. The terms of the injunction will not require either site to be taken down but willrequire all defamatory material to be removed fi·om them. This is notwithstandingthat the Facebook page is now private.Result[248] There is judgment against Mr Parker as follows:(a)On the first cause of action for $85,125 in compensatory damages and$10,000 punitive damages;(b)On the second cause of action for $85,125;(c)On the third cause of action for $170,250;[249] There is judgment against Mr Purkiss on the fourth cause of action for$184,500.[250] There are orders that the defendants:(a)are prohibited from publishing defamatory material about Mr Karamin any forum; and(b)take all reasonable steps to remove defamatory material fi·om theFacebook page and Counterspin site within one month of the date ofthis judgment.[251] I come finally to the question of costs. Mr Reed sought indemnity costs onthe basis of Mr Parker's defence being vexatious, fi·ivolous, improper orUJmecessary, partly as a result of the truth defence, which was abandoned during thetrial.[252] Mr Parker has behaved egregiously in advancing and maintaining defenceswhich had no serious prospect of success. In particular, asserting the defence oftruth to the point of cross-examining Mr Karam and opening his case before finallyadmitting under cross-examination that he was unable to prove any of the matters, initself, justifies indemnity costs.Nor was there any prospect of the defence ofqualified privilege succeeding. It is true that I found several statements to have beenprotected by the defence of honest opinion. However, that modest success does notoutweigh the seriousness of his conduct in every other regard. There are to beindemnity costs against Mr Parker.[253] There will also be indenmity costs against Mr Purkiss. Like Mr Parker, heasserted defences of truth and qualified privilege when neither had any prospect ofsuccess. Although Mr Purkiss did not appear at trial, the assertion of the tmthdefence put Mr Karam to the cost of having Mr Thomas' evidence heard prior to trialand of preparing for trial.[254] Mr Reed may file a memorandum addressing the level of reasonable costsincurred.P Courtney J