Defamation in New Zealand is governed by the Defamation Act 1992 and by a body of developed case law. Defamation is an area of law that is designed to protect a person’s reputation from unfair and unjustifiable attacks. Defamation requires a fine balance between the protection of reputation and the freedom of expression as contained in the New Zealand Bill of Rights Act 1990.
What is a defamatory statement?
What makes a statement defamatory depends on both the context and circumstances in which the particular statement was made. Generally, it is harmful statement made to attack a person’s reputation. Defamatory statements can be made either verbally or in writing. In proving a defamatory statement, the plaintiff (the person bringing the claim) must be able to prove the following three elements:
- The defendant made the defamatory statement;
- The statement was about or in relation to the plaintiff;
- The statement was published by the defendant.
Publication is a crucial aspect that must be determined in defamatory statements. Publication can does not necessarily mean it has to be in a written format. Verbally making a defamatory statement to a group of people constitutes publication. However, a defamatory statement made in private or just to the plaintiff is not enough to constitute publication.
What are defences to defamatory statement?
There are four established defences to a defamation claim:
- Honest opinion – The defendant must be able to prove there was a factual basis on which the opinion was based on.
- Truth – If a defendant is able to satisfy the court that their statement was true then it is a complete defence.
- Privilege – Privilege provides immunity to certain groups of people. One example being ‘parliamentary privilege’ enjoyed by New Zealand’s politicians.
- Consent – If the defendant can prove the plaintiff consented to the defamatory statement, then consent is a complete defence.
What remedies are available?
The Defamation Act 1992 provides a number of remedies depending on the circumstances, the following are the most common remedies:
- The plaintiff can seek a declaration that the defendant has defamed them, in order to clear their name. When the court grants a declaration, it usually also grants the defendant to pay the plaintiff’s client-solicitor costs.
- If the defamatory statement has been published in the media, the plaintiff can, within five days of learning of the publication, request a retraction or reasonable right of reply. If the person responsible for the publication agrees to publish a retraction or a reply, then they will have to also pay for the plaintiff’s client solicitor costs, other reasonable costs incurred by the plaintiff, as well as, compensation for any pecuniary loss suffered by the plaintiff.
- The plaintiff may ask the court for a recommendation that the defendant publish a correction. If the court makes the recommendation, then the defendant will usually be liable for the plaintiff’s client-solicitor costs. However, should the defendant refuse to publish a correction and is later found liable for defamation, the failure to publish a correction earlier is taken into account when assessing damages and the defendant will usually also be liable for the plaintiff’s client-solicitor costs.
In assessing whether to commence proceedings, it is important to weigh up the whether to begin what can often be lengthy proceedings or to send a pre-action letter that clearly sets out the above elements that have been met and their consequences. Often a pre-action letter is enough for a defendant to retract the defamatory statement and publish a correction.