How To Deal With Defamation

DEFAMATION: Another in our series of legal resources for creative people about.

  • What is defamation?
  • When does defamation occur?
  • What is a defamatory statement?
  • When does defamation occur?
  • What are the defences to defamation available?
  • What is the defence of ‘Truth’?
  • What is the defence of ‘Honest Opinion’?
  • What is the defence of ‘Privilege’?
  • What happens if the court finds that defamation has occurred?
  • How can I avoid the risk of having action taken against me for defamation?
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The information provided on this blog has been made possible by the funding received by from the New Zealand Law Foundation.

This Fact Sheet is not legal advice.  This information is intended to provide a general outline of the relevant legal issues and further professional advice should be sought before any action is taken in relation to the information contained in this Fact Sheet.
This checklist remains at all times the property of the Depot Artspace.  You may make use of this Fact Sheet only for your own personal information.  Under no circumstances may this Fact Sheet or the information in it be copied or distributed to any third party by you without the prior written agreement of the Depot Artspace.

What is defamation?

Defamation law allows someone to take legal action against those who say or publish false and malicious comments about them.  It is not defamatory to criticise a person to their face or to send them a letter criticising them.  Defamation only occurs when such comments are heard or read by someone else (a “third party”).  The law around defamation is an attempt to balance the right to protect one’s reputation with the public right to freedom of speech.

When does defamation occur?

The key issue when claiming that defamation has occurred is damage to a person’s reputation.  For example, you may have been defamed if you believe that a person or publication has harmed your reputation by making false statements about you.  The test of whether a communication is defamatory is:

‘Does the communication lower/harm your reputation, hold you up to ridicule, or lead others to shun and avoid you?’

This is judged from the viewpoint of ‘ordinary reasonable people in the community in general’ and in light of contemporary standards. 

What is a defamatory statement?

The particular words used are assessed in their context, but examples of what have been considered to be defamatory statements are:

  • claims or suggestions of anti-social behaviour; 
  • claims or suggestions of fraud;
  • claims or suggestions of dishonesty; and
  • claims or suggestions of incompetence.

If it is found that the words do convey a defamatory meaning the person responsible for the statement will be liable, even if they didn’t intend the words to have such a defamatory meaning.

When does defamation occur?

To establish an action in defamation, the following three elements must be proven:

  • That the statement complained about was published to a third person;
  • That the statement identifies the person bringing the action; and
  • That the statement is defamatory.

You do not necessarily have to prove that you have suffered any specific loss or damage and being able to show you are likely to suffer some kind of loss may be sufficient.

What are the defences to defamation available?

The first step when someone threatens you with legal action for defamation is to establish whether they actually have a case.  They must be able to prove all three elements listed above.  The next step is to consider whether you have a defence under the law of defamation.  It is up to you to prove you do in fact have a defence available to you.

The three main defences to a defamation action are ‘Truth’, ‘Honest Opinion’ and ‘Privilege’.

What is the defence of ‘Truth’?

The defence of ‘Truth’ is available where you can prove that the defamatory statement that you have made is in fact true.  

What is the defence of ‘Honest Opinion’?

The defence of ‘Honest Opinion’ is available where you can prove that the statement complained of was an expression of honest opinion, criticism, observation or conclusion rather than a statement of fact.

It doesn’t matter what the opinion is, as long as it is honestly held by you.  Therefore saying that you ‘didn’t mean it’ could subsequently prevent the defence of honest opinion being raised.

This defence is very relevant for reviewers and critics, but it can also be useful for satirists, comedians and other artists whose work incorporates an element of social commentary.

What is the defence of ‘Privilege’?

The defence of ‘Privilege’ is available where you can prove that the statement complained of was “privileged” in some way.

There are two types of privilege:

  • Absolute Privilege:  In the case of ‘Absolute Privilege’ legal action can not be taken in respect of the defamatory statement, even if it was made maliciously.  An example of the type of situation where ‘Absolute Privilege’ may apply is in the case of evidence given in court or in parliamentary sessions.  
  • Qualified Privilege:  The defence of ‘Qualified Privilege’ is not available where the person making the defamatory statement can be shown to have been primarily acting with ill will towards the defamed person when they made the statement.  The defence of ‘Qualified Privilege’ is typically available in circumstances which would otherwise be regarded as defamation where it is considered in the public interest that certain facts be known.  An example of the type of situation where ‘Absolute Privilege’ may apply could be in the case of reporting in the media in respect of public meetings, local government documents, and information relating to public bodies, such as the Police.

What happens if the court finds that defamation has occurred?

If the court finds that defamation has occurred there are different things the court can require the guilty party to do:

  • Damages:  One of the things that the court can order the guilty party to do is to pay money (commonly referred to as ‘damages’).  If you are the victim of defamation this money is intended to restore you to the position you would have been in if the statement had not occurred and your reputation had not been damaged.  In certain cases, the court may also make an order for ‘punitive’ or ‘exemplary’ damages, which are intended to punish a person who has acted in flagrant disregard of another’s rights.
  • Injunction:  The court can also make an order which requires the guilty party to stop making the defamatory statements.
  • A correction or retraction:  The court can also make an order that requires that a correction or retraction of the defamatory statement is made.  This will be on such terms as the court specifies.

How can I avoid the risk of having action taken against me for defamation?

To avoid the having an action for defamation taken against you, send a copy of what you propose to publish to the people who might regard such material as defamatory.  If they don’t respond, it will be harder for them to take action successfully later, since they haven’t acted to stop the spreading of the statement.  If they say that what you’ve written is defamatory, ask for specifics such as which particular statements or claims are defamatory and why? Then you can judge whether their objections are valid.

You should also be very wary of unnecessarily and unreasonably criticising others because as already outlined above, in many cases statements made in these types of situations will greatly increase your chance of being found liable for defamation and will also restrict your ability to rely on some of the 

defences typically available in respect of defamation.  In any event it also pays to make sure that you have documents or good evidence to back up statements or claims that you make and that you only make very specific statements.  Unnecessarily wide or general statements could open you up to a claim of defamation in respect of an aspect of such a wide or general statement, despite there being good grounds for your statement in some more specific regards.

If you are writing something that might be defamatory, or a defamation claim has been brought against you, it is wise to seek advice from a lawyer who specialises in defamation law.  Your lawyer will be able to advise you in your particular circumstances of any defences open to you, and of what you may be liable for if the person bringing the claim were to succeed.  If necessary, your lawyer can also attempt to resolve the matter before going to trial by seeing if a settlement can be reached.

Written by entertainment lawyer David McLaughlin.

Photo by Carlos Arthur M.R on Unsplash