Introduction

The Defamation Act 1992 covers the law surrounding defamation. When determining whether you can sue someone for defamation, you would need to consider whether your claim is likely to succeed. In order to succeed on a claim of defamation, you would need to prove that (1) a defamatory statement was made; (2) the statement was about you; and (3) the statement was published by the defendant (the one you wish to sue) to someone other than yourself. Then, the defendant would have to (4) prove any defences such as truth, honest opinion and/or privilege.

 

Was a defamatory statement made?

Generally courts will take the natural and ordinary meaning of the words which is the meaning of the words understood by ordinary readers and listeners, in the circumstances in which the statement was published. When courts determine the natural and ordinary meaning, they consider what a reasonable person would take the meaning of the words to mean; what an ordinary person with ordinary general knowledge would think. This includes reading between the lines and reading beyond a sensational headline. Courts do not consider evidence from actual readers, listeners or viewers. Courts decide whether the statement is defamatory based entirely on how a reasonable person would understand the meaning of the statements.

 

What is a defamatory statement?

A defamatory statement is a false statement which may tend to lower the plaintiff (you) in the estimation of right-thinking members of society generally. Therefore, any statements which are not false, will not be considered defamatory. Examples of a defamatory statement include:

  • Suggestions of antisocial behaviour: statements that describe you as disloyal, drunkard, coward, lacking moral virtue etc.
  • Suggestions of fraud or dishonesty: statements that describe you as a cheat or liar. E.g. Chris Cairns was accused of match fixing in a tweet and sued successfully for defamation in the UK.
  • Suggestions of criminal conduct: statements that you have committed a crime or have been convicted of a criminal offence, or even suspected of a crime. This depends on the words used and the way they would be understood by the ordinary reader, listener or viewer.
  • Humour does not save a comment from being defamatory, but humour which any reasonable person would laugh off is not defamatory.
  • Statements tending to make people “shun and avoid” you: statements that could affect your good relationships with others. E.g. being described as insane, diseased, or even in some circumstances saying that you are gay or lesbian.
  • Suggestions of incompetence or unfitness for job: statements alleging abuse of position or dishonesty in employment, or laziness, or incompetence.
  • Suggestions of financial difficulty: statements that you are unable to pay your debts. This includes the financial status of companies.

 

Was the defamatory statements about you?

The test courts use to determine whether the defamatory statement is about you, is whether an ordinary person would understand the defamatory statements were referring to you. This means you do not have to be named in the statement, so long as an ordinary person would understand the statement was about you.

 

Were the defamatory statements published to someone other than yourself?

If the statements were only made to yourself, then there is no defamation. Publication can be to one or a few people. Examples include:

  • Showing a document to a person
  • Passing information to a journalist
  • A postcard sent to you but could have been read by postal staff
  • Emails or faxes that are sent to you but could have been read by others
  • Facebook and other social media sites, blogs etc

 

Are there any defences available to the defendant?

There are four defences available under the Defamation Act 1992 which include, honest opinion, truth, privilege and consent.

 

Could the defendant successfully defend the statements as honest opinion?

In order for the defendant to successfully claim honest opinion, under the Defamation Act 1992, the defamatory statements must (a) indicate the facts on which the opinion is based and those facts relied on must be true; and (b) be recognisable as an opinion. The test the courts use is how the words would strike the ordinary reasonable reader and if they would consider it as an expression of an opinion.

 

Are the defamatory statements based on facts?

In Karam v Parker [2014] NZHC 737, the Judge considered statements made about Mr Karam that he lacked integrity, was motivated by money and had defrauded the legal aid system were defamatory. The court held that these statements were honest opinion because they were based on the fact there was a new case that Mr Karam had taken and it was public knowledge that Mr Karam had received legal aid from the Bain case.

However, in the same case, statements suggesting that Mr Karam had located witnesses that were not genuine and he knew that, conveyed Mr Karam is dishonest and acted improperly in assisting with the defence. The court held this was defamatory because the only factual basis for the statement was that some of the witnesses were “prostitutes and pimps” which was not sufficient to assert Mr Karam was dishonest or acted improperly.

Therefore, in order for you to succeed in a claim of defamation, the defendant’s statement must not be an honest opinion based on true facts.

 

Are the defamatory statements recognisable as an opinion?

In Du Claire v Palmer [2012] NZHC 934, Dr Palmer stated the purpose for her letter was to raise “concerns that I have”. The court held that that language was consistent with the letter as a whole being an expression of opinion.

Therefore, in order for you to succeed in a claim of defamation, the defendant’s statement must not be recognisable as an opinion.

 

Could the defendant successfully defend the statements as privilege?

A privileged occasion is where the person who makes a communication has an interest or a duty (legal, social or moral) to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. Privilege arises when “the mass of right-minded men in the position of the defendant would have considered it their duty under the circumstances” to provide the information (Stuart v Bell [1891] 2 QB 341 at 350, per Lindley LJ). Examples include allegations of criminal or wrongful conduct made to people with proper interest such as the police or parents.

In Rafiq v Yahoo! New Zealand Ltd [2014] NZHC 3196, the Court held that communication to the police was protected by qualified privilege. The Court found that the defendant was entitled to express her concern about the plaintiff’s behaviour and that there was an interest of the Police in receiving such information. Hence, if the defamatory statement against you was made to the Police or someone else with an interest or duty to receive the information, then the defendant may successfully claim qualified privilege and your claim for defamation will fail.

 

However, the Court also stated in Rafiq v Yahoo! that the defence of qualified privilege could be defeated by ill-will or improper advantage having been taken of the privileged occasion. Therefore, if you can prove that the purpose for the defamatory statement was primarily ill-will or to gain an improper advantage, then the defence of qualified privilege would be defeated.

However, the threshold for ill-will is very high. You would need to prove that the primary reason for the statement was ill-will and not out of genuine concern. This would be very difficult to prove.

 

Could the defendant successfully defend the statements as truth?

The defendant may have a complete defence if s/he can establish that the statement is true, or not materially different from the truth. The defendant must prove the sting of the defamation, but not all immaterial minor details.

In Henderson v Mediaworks Radio Ltd [2015] NZHC 509, the Court found the statement that the plaintiff was convicted of fraud was not materially different from the truth even though the plaintiff was not convicted of fraud. This was because the conviction contained an element of fraud within it. Hence, the defendant may successfully defend the defamatory statement against you, if the words are not materially different from truth. Therefore, in order for you to succeed in a claim of defamation, the defamatory statement must not be materially different from the truth.

However, where someone has made an allegation against you and the defendant repeats that allegation, the defendant cannot rely on the defence of truth. The defendant doesn’t prove the allegation is true simply by proving the allegation was made. The defendant can’t prove the truth of the statement just because someone else made the allegation as well.

 

Could the defendant successfully defend the statements as having consent?

There would be a complete defence if you consented to the publication of the defamatory material about yourself. In order be successful, the defendant would need to prove consent to the very matter being published in the way that it was published and the proof must be clear and convincing.

 

What are the remedies for defamation?

There are a number of remedies available for a successful claim of defamation. These include:

  • Damages (monetary compensation)
  • An injunction (to prevent publication or continuance of publication)
  • Correction (a recommendation from the court that the defendant publish a correction)
  • Declaration (a court declaration that the defendant is liable to the plaintiff in defamation)
  • Settlement out-of-court

 

Caution: this website gives helpful tips on what you would need to consider before suing for defamation. This should not replace legal advice from a lawyer. The law of defamation is complicated and going to court is expensive. It is therefore advisable to see a lawyer who can provide you with a legal opinion on whether you have good case for defamation and whether an out-of-court settlement might be reached.

 

 

 

Disclaimer: This website contains general information about legal matters. The information is not advice, and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your lawyer.   If you have any specific questions about any legal matter you should consult your lawyer or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.