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Other Remedies

Damages are usually the ‘big ticket’ item when considering relief, but the law also provides other means to mark or remediate a defamation.

The essentials

Declarations
A unique aspect of New Zealand law is that Courts can issue a declaration that is defamatory.  This can be sought alongside or alternatively to a claim damages.  But if the plaintiff seeks only a declaration, and the Court grants it, then the plaintiff has a presumptive right to be awarded indemnity costs – i.e. their total costs reasonably incurred in bringing the proceeding.

However, both the very granting of a declaration, and the right to be awarded indemnity costs, are still matters within the Court’s discretion.

The thinking behind the enactment of declarations as a form of relief, was to encourage those seeking swift vindication of their reputations who were not particularly interested in monetary relief.  However, a review of the cases in which the relief has been sought highlights quite obvious flaws:

  • Damages still signify to the ordinary reader that a plaintiff has been successful in vindicating their reputation, as well as the measure of that success.  A declaration in addition to damages adds nothing tangible to this success, and is far less headline-grabbing—and we would say, vindicating—than a large award of damages.
  • All genuine plaintiffs will presumably want their reputations cleared as swiftly as possible, whether they are seeking damages or a declaration.  There is no truncated procedure simply because one is seeking only a declaration; the plaintiff must still overcome all the same hurdles as a plaintiff seeking damages, in particular to overcome any defences raised.

Declarations alone have often been sought by plaintiffs for cynical reasons, such as:

  • avoiding negative publicity of seeking damages against a certain defendant;
  • papering over the fact they are unlikely to obtain more than nominal or very modest damages;
  • similarly, where the threat of an award of indemnity costs will be more onerous to a defendant than a claim for damages; and
  • avoiding a trial by jury.

Corrections/apologies
Another unique provision in New Zealand is that the plaintiff can seek an order from the Court that it recommends the publication of a correction of defamatory material.

This normally will be sought an an early stage of the proceeding, such as at a case-management conference.

Until recently, Courts have not endeavoured to order defendants to apologise.  It might be asked how the State can really force a defendant to express—less feel—contrition?

The BSA has in a few decisions taken the step of ordering a news medium to apologise, and in a case in the High Court in 2017, the trial judge framed the recommended correction to be published, as a a correction and apology, and what’s more gave the defendant an ultimatum: either the defendant apologised, or they would be ordered to pay $100,000 in damages.

We don’t think it’s appropriate for Courts to order apologies.  The position is arguably different in the BSA because news media are at least given special privileges in accordance with their normative compliance with broadcasting standards, such as the ability to attend chambers hearings in Court.  The ability of the BSA to order apologies can perhaps be justified as a mandated recognition of a news medium’s breach of their public responsibilities, which serves a wider good than a Court simply ordering a private person to express contrition.

 

A defamation lawyer’s notion of a ‘good’ apology:

 

Retraction/reply
Under a specific provision in the Defamation Act, anyone who claims to have been defamed by a news medium (which still has a rather archaic definition in the Act) can seek the publication of a reply or retraction.  If accepted under the specific provision, the news medium must offer to pay the person’s legal costs and any specified pecuniary losses.  Obviously, there is not much incentive for news media to settle a dispute under this provision, given the onerous fishhooks.  News media might often be willing to publish a retraction or reply, but normally as a private settlement and not in terms of the specific provision.  (The provision is section 25, in case you’re wondering.)

Statements in open court
As part of a settlement, the parties may agree for the defendant, or normally their counsel, to read a statement in open court.  It can be a good way to bring a level for formality and closure to an agreed retraction or apology.  They’re not very common in New Zealand, but occur quite often in England.

Injunctions
An injunction in the world of defamation is a Court order to stop a publication.  This might be to stop a newspaper article being published, to stop a broadcast going to air, or to take down material online (which stops its continuing publication).

Injunctions are very rare in defamation cases.  The intending plaintiff who seeks the injunction must satisfy a higher threshold than other civil plaintiffs who seek injunctions (e.g. residents who wish to stop a building being demolished).  The reason for this higher threshold is that Courts do not wish to interfere with freedom of expression; Courts will normally consider that the plaintiff’s ability to seek and be awarded damages post-publication, strikes the appropriate balance between the right to freedom of expression and the right to protect one’s reputation.

Further, once a story is in the public domain—perhaps especially so via social media—the effect of an injunction is often pointless: “The horse has bolted.”

An interim injunction is still possible, but the law requires the plaintiff to establish that:

  • the statement is unarguably defamatory,
  • there are no grounds for concluding the statement might be true,
  • there is no other defence which might succeed,
  • and there is evidence of an intention to publish the defamatory statement (or repeat it, or continue publishing it if it is online).

That said, if a plaintiff ultimately succeeds with a defamation claim, it is not uncommon for the Court to order a permanent injunction to prevent the defendant from repeating the defamatory statement in any form, or ordering any online content to be removed or ‘unpublished’.

Masterclass

Legal practice tips
For plaintiffs:

  • Given the difficulty of obtaining injunctions under defamation law, it’s worth seeing if an injunction can be sought under claims for invasion of privacy, breach of confidence, and even possibly the tort of intentional infliction of emotional distress.   Some courts have suggested invasion-of-privacy injunctions will have the same test as for defamation, but the position in New Zealand has not been formalised.  Breach of confidence is probably the best bet if the facts stack up, because the ordinary balance-of-convenience threshold will apply.

For defendants:

  • Previously, to avoid an injunction on the basis of a truth defence, one would have to provide a least a corpus of particulars, but the law now seems to be moving in an even more defendant-friendly fashion: that simply a bald intention to plead truth may be enough.  But to be safe, particulars of truth, and perhaps even any supporting affidavits, should be prepared.

For litigants generally:

  • Case law has suggested that if a plaintiff seeks a declaration or the recommendation of a correction, then this takes the proceeding outside the province of a jury.  We think this principle rests on shaky ground, particularly where a declaration is sought.  On the other hand, if a correction was recommended by a judge at an early stage of the proceeding and then not taken up by the defendant, this could pose risks to a jury being influenced by the judge’s earlier findings.

Recommended reading

For the leading authority on declarations and the attendant costs consequences: see paragraphs [92]–[105] and [123]–[129].

For the application of a recommended correction morphing into an ultimatum of a recommended apology: see paragraphs [254]–[273].

For the most recent exposition of interim-injunction principles in defamation proceedings, which demonstrates the high threshold which Courts impose.  The whole judgment should be read.

For another recent exposition of interim-injunction principles in defamation proceedings, where an interim injunction was lifted.  Again, the whole judgment should be read.

And with that, we’ve now outlines all the substantive aspects of a defamation proceeding.  We round off our discussion by first looking at the costs regime, before outlining some standard case procedure.