Defamation Tort

Main legislative authority

Defamation Act 1992

Slander

spoken words

Libel

written or published words

Elements of defamation

defamatory statement referring to plaintiff communicated by third party

Monroe v Hopkins [2018]

A statement is defamatory at common law if it tends to have a substantially adverse effect on the way that right-thinking members of society generally would treat the claim

Thornton v Telegraph Media Group Ltd [2010] EWHC

(to filter out minor claims) words to have caused substantial harm or have tenancy to do so

Sellman v Slater [2017] NZLR

A defamation claim fails if the defamatory statement causes less than minor harm to the plainti'ff’s reputation, because the presumption of reputational damage is rebuttable.

Craig v Slater [2020] NZCA

threshold requirement for plaintiff of “something more than minimal harm to reputation”

TVNZ v Talleys Group Ltd [2024] NZCA

Pre-existing bad reputation means statement may not meet defamation harm threshold (defence)

Nicol v Douglas and McNicol [2024] NZHC

tendency, publication, audience and damage are all assessed at trial because of amount of information

Ellis v R [2020]

Tikanga raised as a possible future outlook on reputation after death

Christopher Jefferies libel 2011 AG v MGN [2011] EWHC

before conviction / none at all and making claims means defamatory

Rush v Telegraph

to falsely accuse someone of being a liar / cheat (the heart of someone’s character) is defamatory

Ridiculing a celebrity or politician

might not be defamatory because of the nature of their job being in the public eye

Youssoupoff v M.G.M (1934)

A statement might be defamatory if it exposes the plaintiff to hatred, ridicule or contempt either due to moral discredit or simply causing them to be shunned or avoided

Columbus v Independent News Auckland Ltd (2000)

suggesting or imputing someone is incompetent at their job is defamatory

Baker v ANZ Bank [1958]

A statement is defamatory is it falsely implies that the plaintiff is financially unreliable or unable to meet obligation and this false implication is published to others

Attorney-General v Wright [2007]

Photograph of someone falsely implying bankruptcy can be sufficient

Berkoff v Burchill [1996]

mere insults or jokes do not harm the person’s reputation. The words are defamatory is they expose a person to contempt, scorn or social exclusion.

Vine v Barton [2024] EWHC

defamatory meaning depends on how a reasonable reader interprets the statement

Mount Cook Group Ltd v Johnstone Motors Ltd [1990]

a loss of commercial ethics or possible loss of customers can be defamatory

Who can be defamed?

individuals, corporations (individually), councils

Natural and ordinary meanings

meaning = literal words and reasonable implications

Banks v Cadwalladr [2022] EWHC

intention is not relevant - it is ordinary reader’s understanding

Sim v Stretch [1936]

“A statement which may tend to lower the plaintiff in the estimation of right-thinking members of society generally”

Massey v N.Z. Times (1911)

Politicians and Celebrities are expected to take more ridicule than others BECAUSE OF what they do - attracting a clot of attention and commentary

Defamation Act 1992 s 6

provides that a body corporate will not succeed in a defamation action unless the defamation has caused it pecuniary loss or is likely to cause it pecuniary loss.

Chakravarti v Advertiser Newspapers Ltd (1998)

the meaning of the words is determined by the context in which they appear

Poulter v Times Newspapers Ltd [2018]

“Simply adding ‘alleged’ does not prevent defamation; the overall effect of the statement is what matters.”

Miller v Turner [2021] EWHC

Tweet meaning = whole tweet + context (links, threads, conversation).

New Zealand Magazines v Hadlee

reasonable person of ordinary intelligence, understand as a matter of impression carry away in his or her head after reading the publication. inferring from the words used in the publication, but not straining them.

Cassidy v Daily Mirror [1929]

The lack of any intention to defame is irrelevant.

Hulton v Jones [1910] AC 20

A defendant cannot escape liability for defamation by claiming they didn’t know who the plaintiff was.

Depp v Heard 2022

To identify the plaintiff (refer to plaintiff rule) extrinsic evidence can be used

The Law Society & Ors v Kordowski [2011]

Too large of a group for Law society to bring claim for “all lawyers”

Cassidy v Daily Mirror

Where a legal innuendo is pleaded, publication must be to someone who knew the extrinsic relevant facts.

Each communication is a separate publication

for which proceedings may be brought.

Publication occurs

at the place communication is affected.

Collerton v MacLean [1962] NZLR 1045.

There is no liability where publication is due to a wrongful act which could not be foreseen.

McManus v Beckham

If you should know your words will reach the media, you may be liable for their publication.

Vizetelly v Mudies Select Library [1900]

A defendant is not liable for defamation if they were innocent of the libel, had no reason to suppose it was defamatory, and were not negligent in failing to discover it.

Rindos v Hardwick SC Western Australia

You can defame someone by publishing something on the internet

Karam v Fairfax [2012] NZHC 887

might be liability if you include a link and you KNOW that the link is to lead to some damaging material elsewhere

Mihaka v Wellington Publishing Co. [1975] 1 NZLR 10.

There can be no complaint from the plaintiff if it can be shown she or he consented to the defamation. BUT  you must show that the person knew what they were consenting to

There will be a complete defence if

the defendant can show the words complained of were true (Roberts-Smith v Fairfax Media)

Defamation Act 1992 s 8

cover a defence of justification (truth)

Broadcasting Corp of NZ v Crush

IN NZ don’t allow defendants to argue about the meanings and trying to prove the lessor meaning

Newton v Dunn [2017] NZHC 2083, (2017) 14 NZELR 621, at [221], [223].

the use of words such as ‘seem to suggest’ and ‘did appear to’ can mean honest opinon and thus not defamation