The Defamation Act 1992, and an entrenched body of case law, governs defamation in New Zealand. It is an area of law that is designed to protect a person's reputation against unjustifiable attack. Providing such protection requires a fine balance between the protection of reputation and the freedom of expression as contained in Section 14 of the New Zealand Bill of Rights Act 1990.
A defamatory statement can be in either written or verbal form. To be successful, the plaintiff must prove they have been defamed by proving the following three elements:
a defamatory statement has been made,
the statement was about the plaintiff, and
the statement has been published by the defendant.
Publication is a crucial aspect of this test. It must be proven that the defamatory statement was published to at least one person other than the plaintiff. If the statement was published to the plaintiff alone then the test for publication will fail. Publication of defamatory statements includes the making of verbal statements.
The four defences to a defamation claim are:
Honest opinion - the defendant must provide the factual basis on which their opinion is based. This defence will not succeed if the defendant simply got the information wrong.
Truth - a complete defence is provided if the defendant can satisfy the court that the defamatory statement was true, or not materially different from the truth.
Privilege – privilege provides immunity to certain groups of society for statements or reports made by them. “Absolute privilege” will serve as a complete defence; an example is where politicians often defame each other in parliament but are protected by parliamentary privilege. “Qualified privilege” however can be defeated if the plaintiff is able to show that the defamatory statements were motivated by malice. Qualified privilege usually attaches to the requirement for fair and accurate reporting by, for example, the media or someone with a social, moral or legal duty or interest to report something.
Consent - a complete defence is available if it can be established that the plaintiff consented to the publication of the defamatory material.
Given the prevalence of the internet in our daily lives, caution must be taken to ensure that statements made online are not defamatory. The recent English case of Chris Cairns against Lalit Modi was the first of its kind in England where a ‘tweet’ made on the social networking site Twitter was held to be defamatory. The resulting award in damages was equal to approximately £3,750 per word for a 24-word publication. Although this case was decided in England, it provides a valuable lesson in terms of publications on social networking sites. (At the time of writing, it was reported that Mr Modi would be appealing the decision).