Basics

The key features of defamation actions: the standard and burden of proof, the elements of a claim, the defences and remedies available, the sources of law, and related legal actions.

What is the standard of proof?

Defamation law applies a civil standard of proof. Facts must be proved on the balance of probabilities – i.e. more probable than not. This civil standard of proof is lower than the criminal standard of proof, which most will know is ‘beyond reasonable doubt’.

What is the burden of proof?

The burden of proof (or onus of proof) refers to the party who bears the onus of establishing something in Court. In defamation law, the plaintiff carries the burden of establishing the elements of their claim. If they can do so, they will have established the defendant’s liability.

However, the defendant can displace their liability by establishing a defence. The defendant carries the burden of establishing the elements of whatever defence they are raising.

For a couple of defences—honest opinion and qualified privilege—if the defendant has established the elements of the defence, the plaintiff can attempt to rebut the defence by establishing additional facts which, if proven, will unseat the defence. In this respect, the burden of proof reverts to the plaintiff.

What are the elements of a claim?

A plaintiff must prove three core elements:

the publication of a statement,
which identifies them,
and contains one or more meanings that bear a defamatory tendency.

Where a claim is brought by an individual, there is also a fourth element emerging under New Zealand law: that the publication has caused the plaintiff a sufficient degree of harm.

By contrast, where a claim is brought by a body corporate—a company, or an incorporated society, trust or charity—harm is already an essential ingredient of a claim. For such claims, harm must be translated as ‘pecuniary loss’ to the corporate plaintiff arising from the publication.

What defences can be raised in response to a claim?

The main defences are:

truth
honest opinion
privilege
RPIC – Responsible Public Interest Communication

There are also some other defences:

limitation
consent
innocent dissemination

We discuss these later on.

What remedies can a Court grant for defamation?

The main remedies are:

damages
a declaration by the Court that the plaintiff has been defamed
a recommendation by the Court that the defendant publish a correction
an injunction preventing or restraining publication (or as the case may be, a ‘take-down order’ imposed on online content)

We also discuss these later on.

What are the sources of law governing defamation?

Defamation is a common-law action. The law has grown on the principles applied in previous cases, evolving alongside changing social mores, trends, technology advancements, and in response to various legislative provisions along the way. Defamation has some special procedures which makes it a unique part of the law. A lot of defamation law exists outside any platform of legislation, but there are certain overriding limits and procedures imposed by legislation and Court regulations.

The starting points are:

the Defamation Act, which provides many applications—and some limitations—of common-law defamation principles, although it is far from a complete code,
the Limitation Act, which provides a fundamental provision; that if defamation proceedings are not issued within two years of publication, the defendant will in the ordinary course have a complete defence to a claim,
the Evidence Act, a code of evidence law and procedure (to which all court proceedings are subject),
the High Court Rules, which govern the rules of civil procedure in the High Court,
and the District Court Rules, which govern procedure in the District Court and mirror the High Court Rules, but with some modifications.

There are many other enactments that affect the application of defamation law. Most of these serve to immunise various acts of publication or speech. For example, statements made in the course of raising a personal grievance in the workplace are protected by absolute privilege.

What are some related legal actions?

Legal claims often cannot be sorted into neat boxes. Sometimes multiple claims—or alternative claims—need to be raised in order to properly address a dispute. Defamation law centrally addresses harm to reputation. But it also serves to provide protection from, and redress for, hurt and distress. This aspect overlaps with other areas of civil law.

Other legal actions which defamation lawyers often consider when advising clients are:

Invasion of privacy – tort: The courts have recognised two species of invasion of privacy:
- Highly offensive publicity of private facts: This involves publications about private information, such as a person’s medical, financial or sexual matters. Unlike defamation, the statements are often true. This tort serves to address the harm caused to a plaintiff’s dignity and autonomy by the publicity of such information. A defendant may displace their liability by proving there was a legitimate public concern in the publicity given to the information. This tort was recognised clearly as part of New Zealand’s legal framework in 2005, with its parameters and application gradually worked out in the years since.
- Intrusion upon seclusion: This involves publications that intrude upon a person’s intimate personal activity, space or affairs, such as clandestine videos of people showering, toileting, or engaging in sexual activity. Unlike defamation, the material does not have to be viewed by a third party for the plaintiff to have a claim. Since such publications will often amount to criminal offences, the tort’s development has been of less moment, but it was formally recognised in 2012.

Invasion of privacy – protection of personal information: Agencies which collect personal information or data—companies, government departments, medical practices, etc.—must comply with the privacy principles under the Privacy Act. This includes an obligation to provide personal data upon request within 20 working days and, in appropriate cases, to correct incorrect data. An important caveat is the Act’s exemption of news media in respect of their newsgathering activities. In contrast to ordinary civil claims, complaints are not brought through the District Court or High Court, but rather to the Privacy Commission. If a complaint cannot be resolved in this forum, then an action may be commenced in the Human Rights Review Tribunal.
Harassment: An affected person may seek a restraining order if a perpetrator engages in a pattern of harassing behaviour that causes distress. As well as the usual types of harassing behaviour—loitering, following, lingering, and abusive messages—harassment may include the placement of electronic media where it is likely to be seen or brought to the attention of the affected person. This includes social media and blogs. A person accused of harassment may raise a defence of lawful purpose. However, if the perpetrator’s behaviour causes the affected person to fear for their safety, then this might well a matter of criminal harassment – a complaint should be made to the Police in the first instance, rather than necessarily involving a lawyer.
Harmful digital publications: The Harmful Digital Communications Act (HDCA) provides a mechanism for people to seek to have harmful online content removed. Complaints are made to Netsafe, whose role is to mediate complaints. If Netsafe cannot resolve the matter, then the complainant can usually seek orders from the District Court, principally for an order taking down the material. The Court will still have to be satisfied that such an order is warranted. Although some defamations might also fall within the HDCA’s ambit, this legislation is more aimed at counteracting cyberbullying and revenge porn. The HDCA is good for people whose main objective is to have the online material removed. Unlike for defamation, a complainant cannot be awarded damages. The process is also unfortunately quite convoluted, so seeking a restraining order under the Harassment Act might be a quicker option – albeit one that is likely more expensive to pursue, whereas Netsafe’s service is free.

Malicious falsehood/injurious falsehood/trade libel/slander of goods: This tort—which goes by several names—is a cousin of defamation, but claims are brought much more rarely. The tort involves false publications that cause economic harm. Unlike defamation, the statement might not necessarily cause reputational harm. For example, if a person falsely and mischievously told concert-goers that a show had been cancelled because of inclement weather, this might cause the promoter or artist to lose revenue, although it would not necessarily impinge on their reputation. In situations where claims for both malicious falsehood and defamation are viable, plaintiffs will normally sue only in defamation. This is because malicious falsehood is much more difficult to establish, the plaintiff being required to prove:
- the publication’s falsity,
- the defendant’s malice (i.e. a dominant improper motive for making the statement, or knowledge of falsity or recklessness as to the truth),
- and that the plaintiff is at least likely to suffer economic harm in the future.

Personal grievance: If a person is publicly shamed by employers or co-workers—or even by clients in some contexts—they may have a claim for unjustified disadvantage under the Employment Relations Act, or even possibly unjustified dismissal if their continuing employment is made untenable. However, employment law is a specialist field, so claims arising from false allegations in the workplace might sensibly be directed to an employment lawyer in the first instance.