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Damage to Reputation - Have you been Defamed?

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Defamation is the branch of law which protects a person from unjustified attacks. In New Zealand, defamation covers both verbal statements (libel), and written statements (slander). For a successful claim in defamation in a court of law, a claimant must prove three elements: (1) that there is a defamatory statement; (2) that it has been "published"; and (3) that it is about the claimant.

Elements for a successful claim of defamation

  • "Defamation" is very fact and context dependent. While one may take offence from a statement made about him/her, it does not necessarily mean that he/she has been defamed.
  • So long as someone would think less of the claimant after reading or hearing the statement, then it could be considered defamatory. If the estimation of the claimant is not necessarily lowered, defamation is not proven.
  • Successful claims have included implying extra-marital affairs of public figures; and ridiculing a sports star who has past their prime.
  • Publication must have occurred, i.e. the statement has been made to another (or others) beyond the claimant. If a statement is made directly to the claimant, and no one else knows of or hears of it, then it cannot be "published".
  • Identification – the statement must refer to the claimant. However, this does not mean that the claimant must be named. It is adequate to prove that the claimant was the person being inferred.
  • For example, a newspaper claimed a woman had been kidnapped by a dog fighting gang, but she was in fact staying with a journalist. In that instance the journalist could sue for defamation.

Defences to a claim of defamation

The Defamation Act prescribes defences against claims of defamation. These include Truth, Honest Opinion, and Qualified/Absolute Privilege.

  • The defence of truth requires that the matter of the statement made was true, or not materially different from the truth. It is also enough to prove that the publication taken as a whole, is true, or not materially different from the truth.
  • The defence of honest opinion – so long as the statement that is honestly held, and the person who made the statement has correctly presented the facts, then he/she would qualify for the defence of honest opinion. The comment however, must obviously be a comment. Malice may not bar the defence of honesty, but can cast doubt on the genuineness of the opinion.
  • Qualified Privilege includes the common law defence of interest; and defence against attack. "Interest" arises where the person making the statement has a legal, social, or moral duty to make the communication, and the reader/receiver has a corresponding interest in receiving the communication. For example, journalists writing about a politician's shortcomings will be more likely to be granted the defence during the election period, so long as they are in the interests of the wider public, and of a political matter, as opposed to a personal matter.
  • Absolute privilege – only available to members of parliament, speaking during a parliamentary debate, or to witnesses giving evidence in court.
  • A statement can be made in retaliation to a defamatory statement made about oneself, however the retaliation cannot be more than self-defence, and such a statement can amount to a defamatory attack itself.

Remedies

The Act provides remedies where defamation has been proven. These come in various forms:

  • Damages are usually the remedy issued by the courts, and are assessed on the injury to reputation caused to the claimant, and the distress suffered
  • Declarations
  • Retractions
  • Injunctions can be issued to stop a party from publishing the statement, where the defamatory material has not been fully published, or released to the public.

To mitigate the consequence for defaming someone, it is effective to issue an apology, and immediately retract the statement.

 

Written by Johnson Zhuang

Please note that the above information is intended to provide general information. The contents contained in this article do not constitute legal advice and should not be relied on as such.