If someone is attacking your reputation or you've been falsely or unjustly attacked either verbally or in writing, you may be a victim of defamation.
Alternatively, you may have been accused of defaming someone else.
There are a few quirky things about defamation, including the intent and how or where the accusation was made, so to ensure that your reputation remains protected, here's a bit of information to help.
What is defamation?
Defamation is designed to protect a person's reputation against unfair or unjustifiable attacks. The Defamation Act 1992, and a collection of case law, governs defamation in New Zealand.
It's worth keeping in mind, that there is a fine balance between the protection of reputation and the freedom of expression, so sometimes defamation claims are not cut and dry.
There are three elements to defamation:
- a defamatory statement has been made,
- the statement was about the person saying they were defamed (plaintiff), and
- the statement has been published by the defendant (the person doing the defaming).
A statement is defamatory if it injures the reputation of another person. A defamatory statement can be in either written or verbal form.
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 person saying they have been defamed. Publication of defamatory statements includes the making of verbal statements - for example, where it is said loudly to a large group of people. If the statement was published to the plaintiff alone, then there has been no publication.
The three main defences to a defamation claim are:
- Honest opinion - this defence only applies to expressions of opinion and not assertions of fact. The person accused of defamation must show that their opinion was genuine.
- Truth - the defendant must show that the defamatory statement was true, or not materially different from the truth.
- Privilege - privilege provides immunity for certain statements.
- Absolute privilege - a complete defence because of where the statement was made, for example parliament and court proceedings.
- Qualified privilege - will apply where there is a social, moral, or legal duty to say something and the person/s it is published to have an interest in receiving the information. Qualified privilege can be defeated the defamatory statements were motivated by malice.
Defamation and the internet
Given the prevalence of the internet in our daily lives, caution must be taken to ensure that statements made online are not defamatory. There have been several cases in recently, including in New Zealand, where comments made on Facebook or other social media sites have been held to be defamatory.
If you're concerned that you have been defamed or that you may have defamed someone else, please don't hesitate to give us a call and chat.