Aside from debt recovery, defamation claims are among the more common civil claims in New Zealand. But what is defamation and how can I defend such a claim?
‘Defamation' is generally a statement which tends to lower someone’s reputation in the eyes of ordinary, reasonable thinking members of society.
If I post in the Ponsonby Grapevine group on Facebook, “that Thai place next to the coffee place has terrible kitchen hygiene,” I may have defamed that Thai restaurant. People who read the comment may be less likely to go there and the restaurant may lose business as a result.
The owner could send me a letter alleging defamation. He says he will sue me unless I pay him $5000 in damages and publish an apology. What do I do? It’s never a good idea to ignore a legal letter, so the two practical options are to defend or settle.
If I want to settle, I could agree to pay the $5000 and publish an apology in the Ponsonby Grapevine. But maybe I’m stubborn and believe I was justified in saying what I said. I tell the owner that I’m not caving and he files a claim in the District Court. What happens then?
The main defences to defamation may seem straightforward in principle, but their application can be tricky.
Truth
I could say: “It’s true! They do have bad kitchen hygiene!” but then it’s my job to prove it. I could get a copy of the restaurant’s food grade certificate from the council (fingers crossed it’s a D or an E).
Opinion
I could say: “It’s my honest opinion!” but if my statement looks like a statement of fact instead of an opinion, saying “It’s my opinion” won’t cut it.
If I said: “There was a cockroach in my cashew nut noodles! That Thai place next to the coffee place has terrible kitchen hygiene,” then I should be okay, provided I can prove that there was a cockroach in my noodles. If I can’t, I’m in hot oil.
Qualified privilege
I could say: “I had good reason to say it, people needed to know so they don’t get sick!” Now I’m in a grey area. I might have the defence of 'qualified privilege’.
This is a defence for statements that can’t be proven true, provided the statement-maker made the statement in good faith, had a duty to disclose the information and the receiver/s had a corresponding interest in receiving it.
If I had just sent an email about the cockroach to the council, I’m probably okay because we’re supposed to share this sort of information with responsible authorities. Telling 10,000-odd members of a Facebook group is riskier. I might still have a defence, but I would need to get a good lawyer.
Other defences I may have some other defences.
Does the restaurant already have a bad reputation? Maybe I only said it to a handful of people, so there’s only been minor harm. Or imagine my Facebook post was more casual: “I don’t like the energy there,” in which case a court case is a disproportionate response to whatever reputational harm I may have caused.
Defamation cases often turn on context, wording, audience and evidence. What looks like a casual social media comment can potentially create significant risk. Equally, a claim that appears defamatory at first glance may be defensible once the facts are properly examined.
Thomas Newman, Solicitor
E: thomas.newman@swlegal.co.nz
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