Defamation Law - How to pursue or defend a defamation claim
Defamation claims have been a topic of interest lately with high profile figures such as Chris Cairns and Judith Collins taking legal action against attacks made on their reputations.
A brief summary of defamation law in New Zealand and the main points that are needed to pursue or defend a defamation claim are set out below.
What is Defamation?
Defamation in New Zealand is governed by the Defamation Act 1992 and an entrenched body of case law. It is an area of law that is designed to protect a person’s reputation against unjustifiable attack. Providing such protection requires a fine balance between the protection of reputation and the freedom of expression as contained in Section 14 of the New Zealand Bill of Rights Act 1990.
A defamatory statement can be in either written or verbal form. To be successful, the plaintiff must prove they have been defamed by proving the following three elements:
- a defamatory statement has been made,
- the statement was about the plaintiff, and
- the statement has been published by the defendant.
Publication is a crucial aspect of this test. It must be proven that the defamatory statement was published to at least one person other than the plaintiff. If the statement was published to the plaintiff alone then the test for publication will fail. Publication of defamatory statements includes the making of verbal statements.
The four defences in a defamation case are:
- Honest opinion - the defendant must provide the factual basis on which their opinion is based. This defence will not succeed if the defendant simply got the information wrong,
- Truth - a complete defence is provided if the defendant can satisfy the court that the defamatory statement was true, or not materially different from the truth,
- Privilege – privilege provides immunity to certain groups of society for statements or reports made by them. “Absolute privilege” will serve as a complete defence; an example is where politicians often defame each other in parliament but are protected by parliamentary privilege. “Qualified privilege” however can be defeated if the plaintiff is able to show that the defamatory statements were motivated by malice. Qualified privilege usually attaches to the requirement for fair and accurate reporting by, for example, the media or someone with a social, moral or legal duty or interest to report something,
- Consent - a complete defence is available if it can be established that the plaintiff consented to the publication of the defamatory material.
Defamation and the Internet
Given the prevalence of the internet in our daily lives, caution must be taken to ensure that statements made online are not defamatory. The recent English case of Chris Cairns against Lalit Modi was the first of its kind in England where a ‘tweet’ made on the social networking site Twitter was held to be defamation. The resulting award in damages was equal to approximately £3,750 per word for a 24 word publication. Although this case was decided in England, it provides a valuable lesson in terms of publications on social networking sites.
“Joy, we cannot thank you enough for your help with our purchase! You have been wonderful to deal with and so proactive (and patient with my numerous emails). We will be visiting NZ in April so will make sure we drop in to thank you in person.”
“I have used Turner Hopkins for my legal services for over eight years. I have always found their level of service excellent and their work to a very high standard. I have used various lawyers at their firm for various businesses I have been involved with and have always had very positive experiences. I would highly recommend them.”
“I can't speak highly enough of Jenny. She got everything done in a timely manner and when my ex-husband threw a spanner in the works at the eleventh hour she got the required documentation to his lawyers and settlement back on track.”
“To Michael Robinson – I wanted to thank you and your colleagues for many years of excellent service to the Bank. You have an outstanding business that has proved to be one of the most reliable and ethical businesses that Collections have dealt with in the almost 9 years I was with the Bank.”
“John is very easy to talk to, he never makes you feel dumb, and never makes you feel like you are wasting his time for asking questions. He explains everything very clearly, every time. John's support staff are also very efficient and so easy to deal with. No detail is missed when dealing with them. My husband and I are fans of them all :)”