Defamatory statements can spread quickly through social media and online platforms or physical media, causing damage to reputations, and financial losses. The Harmful Digital Communications Act 2015 provides some options for reducing harm online, but the ultimate remedy is still a claim for defamation.

What is defamation?

Defamation is a legal claim that arises when someone makes a false statement that harms another person’s reputation. Defamation can occur through written or spoken communication, online, electronically, in hardcopy, or in person. To successfully make a claim for defamation the plaintiff must prove three key elements:

• The statement was published to at least one other person.
• The statement referred to the plaintiff.
• The statement was defamatory, meaning it would likely lower the plaintiff’s reputation in the eyes of a reasonable person.

Defamation is a ‘tort’, meaning that it was originally Judge-made law. These days the Defamation Act 1992 governs defamation and provides rules about liability, defences, and potential remedies, although common-law principles remain relevant to interpreting the law.

What are defences to defamation?

Not every harmful statement amounts to defamation. There are several defences available, including:

• Truth : A statement is not defamatory if it is true or materially true.
• Honest Opinion : If a statement is clearly an opinion rather than a statement of fact, and is based on true facts, it may be protected.
• Privilege : Some statements are protected under absolute or qualified privilege. For example, statements made in Parliament or court proceedings are absolutely privileged, while media reports on public interest matters may have qualified privilege.

Who can make a defamation claim?

Individuals and organisations, including companies and charities, can bring defamation claims. A natural person can make a defamation claim without needing to prove actual financial losses. A body corporate such as a company, charity or incorporated society must be able to show that they have suffered (or are likely to suffer) financial harm.

Like any legal proceedings it is prudent to carefully consider whether it is in your best interests to file a defamation lawsuit. Lawsuits are costly and potentially risky, and filing a defamation claim (especially if you are a prominent or public figure) could bring more unwelcome attention than the original defamatory statements did, in a phenomenon known as the “Streisand effect”. This is where attempting to suppress or censor information unintentionally increases public interest and awareness of it. It is named after singer Barbra Streisand, who in 2003 tried to remove an aerial photo of her home from public records, only to draw more attention to it.

Public figures can face a higher threshold for proving defamation, as they may be required to show that the statement was made with actual malice or reckless disregard for the truth.

A defamation claim must generally be filed within two years of the defamatory publication, though the Court may allow an extension in limited circumstances.

There are certain mechanisms in the law to penalise use of a defamation claim unreasonably or in bad faith to try to suppress free speech (usually involving awards of costs against a misbehaving party). Despite that, the onus is still on the defendant to prove their defence, and New Zealand does not have an “anti-SLAPP” law. A SLAPP suit is a “strategic lawsuit against public participation” or a lawsuit that is brought to intimidate, silence, or retaliate against a person (usually in relation to matters of public interest). Other jurisdictions allow defendants to make anti-SLAPP claims early in a proceeding, forcing the plaintiff to justify why their claim should proceed. These help to protect free speech by dismissing claims that were brought for wrongful motives before the defendant incurs too many costs.

What are the Remedies for defamation?

For a natural person, defamation does not always require proof of financial loss. Damage to reputation may be presumed if the defamation is serious enough. Types of financial remedies include:

• Economic harm: This can include lost business opportunities, employment termination, or decreased income;
• Emotional distress: If the defamatory statement caused significant distress or humiliation the Court can direct a payment for this;
• Special damages: These are quantifiable financial losses directly caused by the defamatory statement.
• Punitive damages: A payment to punish the defendant and deter similar conduct, if they acted in flagrant disregard of the rights of the plaintiff.

Other forms of remedies that the Court can award are:

• Injunctions: If defamatory statements continue to be published, the Court may issue an injunction to prevent further harm.
• Correction Orders: The Court may recommend a correction or clarification to be published, ensuring that the public receives accurate information.
• Declaration: The plaintiff may seek a declaration that they have been defamed.

Costs are typically awarded against the losing party; this is usually only a contribution to costs, not the plaintiff’s actual legal expenses. However there are some situations where it is presumed that actual legal expenses must be paid. This includes a situation where the plaintiff only requests a declaration that they have been defamed and costs, without seeking additional compensation, and succeeds.

On the other hand, if the plaintiff wins but claimed an amount of damages that the Court thinks was grossly excessive, the defendant may be awarded their actual legal expenses from the plaintiff. This discourages unrealistic claims.

Possible changes to the Defamation Act 1992?

There are no changes to the Defamation Act currently in progress, although various proposals have been floated in legal circles. Possible changes could include:

• Anti-SLAPP provisions to make it easier for defendants to have claims dismissed if they are for wrongful motives, or would unduly harm free expression and public participation;
• Adding a threshold so that the plaintiff needs to be able to prove some minimum level of harm (either financially or to reputation), such as “more than minor”, or “serious”;
• Expanding remedies to include a Court-ordered apology;
• A presumption that plaintiffs receive a suppression order to prevent their claim from backfiring by gaining further publicity;
• Putting the burden of proof on the plaintiff to show that the defamatory claim was not true, or could not have been a reasonably held opinion, rather than requiring that the defendant shoulder the burden of proving these; or
• Overhauling defamation law entirely to include Defamation, protection of Privacy, and the Harmful Digital Communications regime, into one combined and consistent piece of legislation.

Conclusion

Defamation law in New Zealand balances the protection of reputation with the right to freedom of expression, although it is often thought to favour plaintiffs more than defendants.

The ease of making public statements online – which may be read by thousands of people almost instantly – makes it very easy to defame someone and far harder to undo the damage done. Social media is rife with instances of defamation, yet most people don’t have the motivation or resources to pursue a lawsuit (or are satisfied with pragmatic remedies available via other sources such as the Harmful Digital Communications Act, and NetSafe). All it takes to risk a defamation claim is one heated comment against a person who is willing to take the matter further.

If you believe you have been defamed or are facing a defamation claim, seeking legal advice early is essential. Our experienced team can help you understand your rights and options.