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Defamation law varies wildly by jurisdiction.  Online searches can throw up confusing and misleading answers.  So here we answer the most commonly searched questions from a New Zealand context.

Can swearwords be defamatory?
Not normally.  A defamatory statement will usually carry an underlying factual allegation of misconduct or flawed character.  By contrast, courts tend to distinguish swearwords as non-actionable ‘vulgar abuse’.  For example, Courts have refused to hold defendants liable in cases where plaintiffs have been described as a “horse’s butt”, “cow”, “bitch”, and “asshole” (the latter, unconscionably, describing a lawyer).

However, sometimes a creative or compound expletive might give rise to an actionable claim.  For example, in 2013, a South Island fisherman, when leaving a community board meeting, uttered that its Chair was a “lying slut”.  In the context in which the words were used in that case, the Court held that “slut” was vulgar abuse (so not defamatory), but the “lying” part was defamatory for conveying dishonesty – bolstered by the fisherman’s preceding remarks, “Right, let’s get the cops.”

Our special guide to help you swear safely at people can be found here.

Is defamation a crime?
No, not anymore.  Criminal defamation was abolished in 1993.  And even when it was around, prosecutions were very rare.

The most you could say now, is that a couple of types of very serious defamations could also be criminal offences under certain legislation.  For example:

  • Under the Electoral Act, it can be an offence to publish knowingly false statements with the intention of influencing voters.
  • Under the Harmful Digital Communications Act (HDCA), it can be an offence to intentionally cause someone serious emotional distress through a digital posting.  This might sound like a neat fit for many defamations.  And indeed, when the HDCA was enacted some thought it might lead to defamation claims being cloaked as criminal offences under the HDCA.  But this hasn’t been the case in practice.

In many countries around the world—particularly developing and third-world countries—defamation is still a crime.

Can something be defamatory if it's true?
No.  But also yes… kinda.  We’ll explain.

Dictionaries give ‘defamatory’ a grave definition, such as:

damaging the good reputation of someone.
damaging the reputation of a person or group by saying or writing bad things about them that are not true.

By contrast, the word ‘defamatory’ is used in Court in a more limited sense: that a statement bears a meaning with a ‘defamatory character’ or ‘defamatory tendency’ – i.e. that its publication would tend to lower the plaintiff in the estimation of right-thinking people generally.  Another description, that a statement is ‘prima facie defamatory’, is to the same effect.  These descriptions recognise a fundamental caveat: if a defence can be established, no wrong will have occurred.

This ambiguity of the word’s usage can give a misleading impression.  Face-saving plaintiffs will sometimes claim a moral victory because the Court accepted an allegation was defamatory, even though it also found the allegation to be true.  (Quite the opposite of victory.)

The short point is that if the publisher can prove that a statement with a defamatory character or tendency is true, they will have a complete defence.

Are some types of allegation no longer defamatory?
Indeed.  One of the best examples is cohabiting – i.e. unmarried couples who live together in a sexual relationship.  Once upon a time, to publish this allegation would have caused quite the scandal.  But not anymore.

Similarly, to call someone a communist in 1962 would have been defamatory.  In of itself, it is difficult to see how such an allegation would give rise to a successful claim today.

Allegations of homosexuality were also once defamatory.  One of the most famous cases involved Oscar Wilde.  There is a great write-up of that case on our Australian counterpart’s website.  But clearly such allegations are no longer defamatory in of themselves.  This change in social mores has been incremental.  Even after the Homosexual Law Reform Act 1986, which decriminalised sexual relations between men aged 16 and over, in 1996 the Court of Appeal was still of the view that allegations of lesbianism or bisexuality were capable of being defamatory.  But with the passing of the Marriage (Definition of Marriage) Amendment Act 2013, which legalised marriage between same-sex couples, it’s hard to see how a Court could now regard an allegation of homosexuality as defamatory.

So, too, with allegations about a person’s mental health difficulties.  While once defamatory, today society has a better understanding of, and empathy for, mental health issues.  Indeed, in a 2002 case the jury rejected that such an allegation was defamatory.

Importantly, an allegation won’t be defamatory simply because some people might form an adverse view about an allegation of cohabitation, communism, homosexuality, mental disorder or whatever it may be.  The question is whether an allegation would have tendency to lower the person in the estimation of “right-thinking people generally.  This general right-thinking person is a product of their time.

Finally, despite what we have said above, even if an allegation may no longer be defamatory in of itself, it might also give rise to an inferential defamatory meaning.  For example, to say that Louis is a practising homosexual when he not, might no longer be defamatory.  But if Louis was otherwise known to be happily married to Sally, it might give rise to a defamatory implication of infidelity or dishonesty.  Similarly, to say that Louis has lost his mind might no longer be defamatory.  But if Louis is the Chief Executive of an NZX 50 company, it might give rise to a defamatory implication that he not fit to hold his position.

What is the difference between libel and slander?
Historically, defamations were either libels (written statements – or technically, ‘permanent’ statements) or slanders (oral statements – or technically, ‘transient’ statements).

Libel originated in the disciplinary jurisdiction of England’s ecclesiastical courts and the criminal jurisdiction of the Court of Star Chamber.  By contrast, slander emerged as a common-law action governed by conventional principles of tort – in particular, that the law does not presume injury to reputation by mere oral statements and treats injury to feelings as insufficient to found a cause of action.

Claims for libel proceeded with the law giving the plaintiff the presumption of reputational harm.  Not so with slander claims, which, consistent with other claims in tort, required proof of special damage – i.e. pecuniary loss rather than injury to reputation.  But there were exceptions: the law treated four categories of slander on the same basis as libel because of their particular propensity to injure the plaintiff’s reputation.  These categories were words that (a) imputed criminal offences, (b) imputed certain contagious or infectious diseases, (c) tended to injure a person in his or her office, calling, trade or profession, and (d) imputed unchastity or adultery to a woman or girl (from 1898 in New Zealand).

The historical distinctions are now irrelevant: New Zealand law has not imposed these special requirements, limitations or exceptions since the 1950s; whether libel or slander, all claims now brought by individuals are simply claims for defamation, with no proof of special damage (pecuniary loss) required.  As we will discuss, the situation for companies who wish to sue for defamation is a little more complicated.

Are anti-SLAPP motions available in New Zealand?
Not directly.  Anti-SLAPP motions—which seek to strike out Strategic Lawsuits Against Public Participation—are prevalent in the US, with some lawyers even specialising in this area.  There is no special legislation dealing with such claims in New Zealand.  If a defendant can show that the plaintiff has no intention of proceeding to trial, or has brought the proceeding for a collateral purpose, the claim will be struck out as an abuse of process.  That said, these are difficult grounds to establish.

Can companies sue for defamation?
Yes, and not only companies.  Partnerships, trusts, charities and incorporated societies are all ‘body corporates’ under New Zealand defamation law.  In England, universities have even brought claims.  However, not every type of entity may sue.  Government bodies—and probably political parties—cannot sue because the public interest requires that they are open to uninhibited criticism.

To have an actionable claim, body corporates must be able prove—in addition to the three core elements of publication, identification and defamatory meaning—that the publication caused ‘pecuniary loss’, or that such loss is likely to occur in the future.  Whereas individuals may receive damages that compensate them for hurt and distress, body corporates do not have feelings and can only be hurt ‘in their pockets’.  The purest form of pecuniary loss is probably a loss of profits that can be demonstrated on a balance sheet.  Charities may point to a fall in subscribers, or the impairing of its charitable objects.

Corporate plaintiffs often claim other matters as amounting to requisite pecuniary loss, such as loss of goodwill, internal costs such as executive and in-house counsel’s time spent addressing the matter, and mitigation (e.g. costs to public relations firms to manage a resulting crisis).  It’s unclear whether Parliament intended ‘pecuniary loss’ to include such a broad ambit of potential losses.  Claims based on damage to goodwill have received a mixed reception by the Courts, while internal costs and mitigation expenses are more shaky still.

In any case, pecuniary loss is difficult to prove because the body corporate must also prove causation: that the loss can be directly attributed to the defamatory statement.

Can the dead be defamed?
No.  A claim in defamation dies with the person.  If criticism of the dead casted a slur on the next of kin, that person might have a claim in their own right, but these cases are very rare.

In one of our Case Reviews, we looked at an 1890s case brought in England by a next of kin.

Can it be defamatory to say something if someone else has already said it?
Yes.  A person will be just as liable for repeating rumours or allegations as the person who first made them.  We cover this issue on the next page under publication.

Can someone be liable for what another person has published?
Yes, sometimes.  There are different categories of liability.  We’ll cover this under publication.

Can Facebook, search engines and web-hosting services be sued for defamatory material published through their servers?
Yes, but it’s not easy.  We’ll look at this more under publication.

Can something be defamatory if no names are used?
Yes.  The issue is simply whether the plaintiff can be reasonably identified.  We’ll cover this shortly when we come to identification.

Can groups of people be defamed?
Yes, but only if a reader is able to identify individuals within the group.  We’ll also give details about this under identification.

Is there a time limit for suing for defamation?
Yes.  A plaintiff has two years to issue proceedings for defamation following publication of the matter complained of.  There are a couple of exceptions.  We cover this issue later on under other defences.

It’s time to dig deeper and see how a plaintiff establishes a claim.  We begin with the element of publication.