How to defend a defamation action in New Zealand

If somebody sues you for defamation, there are a number of defences that may be open to you. These defences are contained in the DEFAMATION ACT 1992 and in law that is based on court decisions (called the "common law").

The aim of the defences is to maintain a balance between society's interest in protecting people's reputations and the right of freedom of speech.

What does the person suing me have to prove?

Before there is any burden on you (the defendant) to raise defences to defeat the claim against you, the person suing you (the plaintiff) must establish the necessary elements of defamation:

• The statement you made must have been defamatory of the plaintiff. The courts have given a number of different definitions of "defamatory", including a statement that tends to lower a person in the estimation of right-thinking members of society, or that tends to cause the person to be shunned or avoided, or that tends to cause the person to be exposed to hatred, contempt or ridicule.
   
• The statement must have been communicated to one or more people – in other words, there must have been "publication".

What defences are available to me?

You may be able to defeat the claim against you by showing that the plaintiff hasn't proven the necessary elements of defamation - namely, a defamatory statement about the plaintiff, and publication. But assuming that the plaintiff can establish these elements, there are some specific defences available to you. It is for you to prove these defences; it is not for the plaintiff to disprove them:

• Truth (formerly called "justification"): You will not be liable if the defamatory statement is true. The plaintiff is not required to prove that your statement was untrue to establish his or her claim, as the law assumes that defamatory statements are untrue. This means that you, the defendant, bear the burden of proving that the statement was true.
   
• Honest opinion (formerly called "fair comment"): You will not be liable if you prove that the statement in question was a statement of your genuine opinion on a matter of public interest.
   
• Privilege: You will not be liable if you prove that you were entitled to make the statement because it was subject to absolute or qualified privilege
   
  • "Absolute privilege" applies to judges, lawyers and witnesses in legal proceedings, to MPs for things they say in Parliament, and to statements made by various officials dealing with "affairs of state". There can be no liability in defamation for these statements, even if the person making the statement was motivated by malice.
     
  • "Qualified privilege" applies where the person making the statement has a duty of some kind to make the statement to someone who has a corresponding interest in receiving it. However, the person making the statement must do so in good faith and without any improper motive; this means that, unlike absolute privilege, this defence won't protect you if you acted out of malice or ill will towards the plaintiff. Examples of where qualified privilege will arise are reports of court proceedings, statements made at meetings of public bodies, and statements made in the investigation of crimes.

What remedies can the court grant the plaintiff against me?

In a defamation action, the court can:

• make a declaration that you are liable in defamation
• order you to pay damages to the plaintiff
• recommend that you publish a correction

Cautionary notes

• It is advisable that you seek advice from a lawyer about any defamation claim against you. Your lawyer will attempt to resolve the matter before going to trial by seeing if a settlement can be reached, and will also be able to advise you of any defences open to you and of what you may be liable for if the plaintiff were to succeed.