Winner in NZ Internet defamation case to seek costs

The successful plaintiff in the New Zealand's first Internet defamation case, Patrick O'Brien, says he is pleased with the outcome. But O'Brien, the former head of Internet registrar Domainz, has put his former employer "on notice" of further legal action for breach of contract.

"We had a physical agreement in place that I would stand as plaintiff and they would fund my case. The new board reneged on that deal and I have clearly put them on notice that there is unfinished business," says O'Brien.

O'Brien's suit was against Alan Brown, an InternetNZ member, who was found to have defamed O'Brien in an InternetNZ mailing list. O'Brien was awarded NZ$42,000 (US$18,300) in damages in a judgement released on Friday.

An e-mail leaked to IDGNet from the InternetNZ council mailing list does seem to indicate that the then chair of the organization, which owns Domainz, Peter Dengate Thrush, along with former chair Jim Higgins and O'Brien, agreed to look into a defamation case against Brown.

During the trial, O'Brien claimed the case was initiated by Dengate Thrush. Dengate Thrush declined to discuss the issue as it was before a judge. He is currently representing InternetNZ in South America at a meeting of the Internet Corporation for Assigned Names and Numbers (ICANN).

O'Brien, who now lives and works in Singapore, says he is surprised InternetNZ has not been more vocal since the ruling was delivered.

"They were very quick off the mark over Microsoft and security flaws. This is an important precedent for New Zealand Internet users and they are the Internet society. I would have expected to see more from them." O'Brien says he is currently preparing a memorandum for the judge on his costs incurred during the trial.

"We were told to file for costs as well, so the $42,000 is only part of that." O'Brien says the lead up to the trial was very unpleasant and having support from Domainz withdrawn at the last moment meant he had to pay for his own representation in court.

"I had to pay for counsel, to have two people in court. I even paid for documents that Brown had to present, right down to pencil and paper for him."

Domainz board chairman Bob Gray says he is not aware of any signed agreement between Domainz and O'Brien.

"It's my understanding that there was no formal agreement to fund the case. However, there was a verbal agreement between the former board and O'Brien." Gray says that agreement hinged on O'Brien not receiving any "personal gain" from the case.

"Jim Higgins made a statement to council that O'Brien would not benefit personally from the case and we proceeded on that basis."

Gray says the new board of Domainz, which took over part way through the pretrial period, asked for a confirmation from O'Brien that he would not benefit personally from the case.

"We didn't get it and so we ceased to fund the case." Gray says he has yet to hear from O'Brien or his lawyers about any further action.

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