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Other Defences

Aside from truth, honest opinion, privilege and RPIC, the law provides some other defences available to those accused of defamation.

The essentials

Limitation
Limitation law is a key aspect of any civil case.  It is probably deserving of its own page, but there’s really not too much to say about it.

Under the Limitation Act, defamation claims must be brought within two years of publication.  This is a strict rule and there are only two exceptions.

  • First, if the plaintiff can establish they only reasonably discovered the defamatory material sometime later—and further that they ought not reasonably to have known about it beforehand—the Court can proceed on the basis that the two-year limitation clock commenced on this ‘late knowledge date’.
  • Second, if the plaintiff can establish that they were ‘incapacitated’ during the ordinary two-year limitation period, then the Court can extend the limitation period.  This is an extremely high threshold, and will almost never apply.

One quite tricky issue, which both first-instance and appellate courts have repeatedly kicked for touch, is how New Zealand’s ‘multiple-publication rule’ affects limitation for publications that occur online.  Under this rule, each fresh publication of defamatory material gives rise to a fresh claim for defamation.  Before the internet, the issue didn’t really crop up; today’s newspaper would be tomorrow’s fish-and-chip paper.  Very few claims were brought over historical publications dug out of libraries about which the plaintiff was previously unaware.

But online publications are different.  A defamatory blog post from, say, 2005, might be accessed multiple times today, giving rise to fresh claims for defamation.  This means that for content that remains online, there seems to be no effective limitation period.  Arguably the Limitation Act applies a ‘longstop’ period after the expiry of 15 years from the date of first publication.  But this might also be subject to the multiple-publication rule.  This issue is more likely to be the subject of a law exam question than arise as an issue for determination in Court, since it would require a plaintiff to sue over a 15-year-old online publication and to first establish a late-knowledge date.

Some countries, such as the United States and England, have adopted a ‘single-publication rule’, from which the Court will use the date of first publication as the means to assess any limitation defence.  This has obvious attractions.  But on the other hand, there may be plaintiffs whose online search results have changed over time with the vagaries of search engine algorithms, meaning that once-historical posts in some dark corner of the internet, might come to be prominently displayed in search queries.

We think the best answer lies in Parliament enacting a single-publication rule, which therefore puts the onus on individuals to actively manage their online reputations.  Perhaps there could be rare situations accommodated by the law, in which the plaintiff may rebut this presumptive single-publication rule.

Innocent dissemination
This defence is fairly straightforward.  Essentially, publishers who unwittingly distribute defamatory materials (such as librarians and booksellers) and those who unwittingly process it (such as commercial printers) will have a defence to a claim.

There is very little New Zealand law on the issue, but the defence would seem to apply now also to ISPs and web hosts.  Somewhat less clearly, it may also apply to social media platforms and search engines.

But to whomever it applies, its protection is not rock solid.  In order to establish the defence, the distributor or processor must establish that they didn’t know what they were processing or distributing contained the defamatory material, nor that it was of a character likely to contain defamatory material, and further that their lack of knowledge was not borne of negligence.

This defence rarely comes to be considered in Court.  This is because most plaintiffs, when they discover the defamatory material, will put the  processor and distributor on notice of the defamatory material.  At this point, your bookseller, librarian or ISP will lose the protection of the defence and, in most cases, will remove (or deactivate access to) the defamatory material to resolve the claim.  Only a foolish plaintiff would issue a proceeding against a distributer or processor without ticking off the application of this defence.  Similarly, it would be a rare for a librarian or ISP to take it upon themselves to, say, establish the truth of some third-party-authored defamatory publication.

In one of our Case Reviews, the defence was considered where a university professor sued the printer of a student magazine.

Consent
This is probably the rarest defence of all and is easily the most straightforward.  If the defendant can establish that the plaintiff consented to the publication of defamatory material, then they will have a complete defence.  This law is based on the maxim volenti non fit injuria – or in English, “To a willing person no injury is done.”

The defendant must prove the consent was clear and unequivocal; that the plaintiff understood what they were consenting to.

While implied consent might be enough, only a stupid publisher would suggest that a plaintiff who had simply agreed to be interviewed for an article had consented to being defamed.  Perhaps the consent could be implied if the plaintiff had been provided with and approved a draft article.

Further, the plaintiff does not consent to publication if he or she is under a duty to pass the information to others, such as a secretary who is duty-bound to distribute documents for a meeting that contain defamatory material about themselves.

Lack of sufficient harm
Given the relative confusion surrounding the threshold and burden of proof when it comes to proving harm (or lack thereof), a defendant might legitimately raise the issue of a lack of sufficient harm as a discrete ground of their defence.  But because this issue is probably more a matter for the plaintiff’s establishment of their claim—and we think will be definitively following high appellate consideration or legislative reform—we have covered this issue in our discussion of harm.

Masterclass

Legal practice tips
For litigants:

  • For plaintiffs running up against a limitation clock, it is best to ensure someone—anything—is filed before the limitation period expires, especially since the Court no longer has a general discretion to allow claims to be brought beyond the limitation period.
  • Quite often defendants will plead as “affirmative defences” things like “Publication not capable of defamatory meaning” or “Plaintiff not identified”.  These pleadings are meaningless.  They are not defences because they are elements of the plaintiff’s claim.  If one has denied, say, that the meanings pleaded are defamatory or that the plaintiff was identified, then the point is already in issue.
  • The supposed tactical reason for raising these matters in a statement of defence—to intimidate the plaintiff with an impressive array of defences—is a bit of a flop.
  • Plaintiffs might have reasonable grounds to seek orders striking out these pleadings, but this would be a waste of time, effort and costs because these superfluous pleadings won’t have any bearing on the proceeding.

Recommended reading

For limitation exception of ‘incapacity’: see paragraphs [3]–[4] and [13]–[25].

For limitation exception of ‘late-knowledge dates’: see paragraphs [13]–[16] and [21]–[64].

And for treatment of publications not barred by limitation (because of the multiple-publication rule): see paragraphs [65]–[74].

For application of ‘innocent dissemination’ to a search engine.  We recommend reading the whole judgment, for it also analyses the related issue whether a search engine is a ‘publisher’ at all.  We note that the issue has undergone much more recent consideration in England, Australia and Hong Kong, so interested parties would be wise to expand their research further afield.

That concludes our discussion of the defences.  Now we move to the remedies, starting with what people are usually most interested: damages.