DEFAMATION

What are the 3 elements that the plaintiff must prove to file a defamation claim?

1. Statement is defamatory

2. Statement refers to the plaintiff

3. Statement is OR will be communicated to a third party (other than P or D’s spouse)

E1: What is the definition of a 'defamatory' statement at common law (Monroe v Hopkins)?

A statement is defamatory if it tends to have a substantially adverse effect on the way right-thinking (ordinary & reasonable) members of society would treat the claimant.

E1: How can the presumption of harm to reputation be rebutted (Craig v Slater; TVNZ v Talley’s)?

By D proving that the statement caused less than minor harm to the plaintiff’s reputation, for example, due to the plaintiff's pre-existing bad reputation. Where P is a corporation, there is no presumption of damage and P must prove (likely) pecuniary loss suffered.

E1: How does death affect a defamation claim (Hagaman v Little; Ellis v R)?

One cannot file a defamation claim on behalf of someone who has died, although a recognition of tikanga Māori at common law may allow a tribe/family to continue the decd’s claim.

E1: What is the 1/8 category of defamatory statements (Lewis v Daily Telegraph)? 

IMPUTATIONS OF CRIMINAL CONDUCT = A statement that falsely suggests (a) P is actually guilty, (b) there are grounds to suspect guilt, (c) there are grounds for an inquiry (most to least likely defamatory). 

E1: What is the 2/8 category of defamatory statements (Rush v Telegraph; Wilson v Bauer)?

IMPUTATIONS OF IMMORAL/IMPROPER CONDUCT OR TENDENCIES = A statement that falsely suggests P has performed sexual/ethical misconduct in the workplace OR is lying (false suggestions of homosexuality are no longer defamatory - Ahmadi).

E1: What is the 3/8 CATEGORY of defamatory statements (Columbus v Independent News Auckland; McDonald’s v Helen; Thornton v Telegraph Media Group)?

IMPUTATIONS OF INCOMPETENCE IN OCCUPATION/BUSINESS = A statement that falsely suggests P lacks the requisite skill/knowledge/qualification/judgement/efficiency OR is falling below certain standards (E.G. health, research) in performing their occupation/business. INCLUDES employee exploitation.

E1: What is the 4/8 CATEGORY of defamatory statements (AG v Wright)?

IMPUTATIONS OF INSOLVENCY/BANKRUPTCY = A statement that falsely suggests P cannot pay their debts, EVEN IF P is financially sound. 

E1: What is the 5/8 category of defamatory statements (Youssoupoff)?

STATEMENTS CAUSING PEOPLE TO “SHUN AND AVOID” THE P = A statement that falsely suggests something that evokes fear OR is stigma-inducing (E.G. contagious disease, rape victim) that causes others to “shun or avoid” the P, even without suggesting moral fault.

E1: What is the 6/8 category of defamatory statements (Berkoff v Burchill)?

INSULTS AND ABUSE = A statement that falsely suggests something that materially lowers P’s reputation or impact P’s professional/social standing (Berkoff v Burchill: “Hideously ugly” actor).

E1: What is the 7/8 category of defamatory statements (Massey v NZ Times; Craig v Civilian Online)?

RIDICULE = A statement that ridicules P can be defamatory IF it’s virulent enough. HOWEVER, public figures are expected to withstand more & pure satire / obvious parody (exaggeration unlikely to be taken seriously by a reasonable person) is likely insufficient.  

E1: What is the 8/8 category of defamatory statements (Mount Cook Group v Johnstone Motors)?

LOSS OF COMMERCIAL ETHICS = A statement that falsely suggests a business has lost ethical standards/integrity in its commercial practices.

E1: What are the 2 meanings of words that P can argue (NZ Magazines v Hadlee; Cassidy v Daily Mirror), what about social media users (Stocker v Stocker), AND is D’s intention relevant (Banks v Cadwalladr)?

1. NATURAL & ORDINARY MEANING = Under the circumstances in which the words were published (and in light of the full context of the publication) would the ordinary, reasonable reader (without special knowledge) understand OR infer from them a defamatory meaning? NOTE: A social media user would likely interpret words non-literally, making the statement possibly non-defamatory.

2. LEGAL INNUENDO = Would a reader who’s part of a special group with special knowledge understand OR infer from the words a defamatory meaning?
   
   NO—D’s intention ISN’T relevant.

E2: What 2 situations constitute “referring to the plaintiff” (Depp v Heard; Law Society v Kordowski)?

1. P NAMED OR FILMED = Is P explicitly named/filmed OR could an ordinary, reasonable person make the inference? Extrinsic evidence (outside facts known to readers) may be used to prove this.

2. GROUP DEFAMATION = If the statement is about a group, are the individual members personally referred to (unlikely if large group)?

E3: What are the ‘chain of publication’ AND ‘joint tortfeasor’ liability rules for every person (E.G. printers, editors, hosts) who publishes defamatory material OR causes/contributes towards it (McManus v Beckham; Christian v Bain)?

1. EARLY PARTICIPANTS = Was it reasonable foreseeable to them that their statement would reach the public OR be republished?

2. JOINT TORTFEASOR (alongside publisher) = Did they substantially participate in the publication? 

E3: Where is considered “the place of publication” of online statements (Dow Jones v Gutnick)?

Where the material is downloaded (& the P’s reputation in that country), NOT where it was uploaded. 

E3: Is there liability for accidental publication?

NO.

What is the 1/7 defences (Vizetelly v Mudies Select Library; S 2)?

INNOCENT DISSEMINATION = A person who published in the capacity of a processor (S 2 DA: plays a role in printing/reproducing—arguably protects internet service providers & social media platforms) OR distributor must prove they didn't know the matter contained defamatory material OR was of a character likely to, AND that their lack of knowledge wasn’t due to negligence.  

D1: What is the general rule on liability for defamatory publication online (O'‘Brien v Brown), AND what are the 5 categories of defamatory internet publication (International Telephone Link v IDG Communications; Karan v Fairfax; Wishart v Murray; A v Google; Sellman v Slater); ?

GENERALLY, the same principles apply to defamatory publication online as they do to print media. 

1. DIRECT PUBLICATION = Uploading material yourself (E.G. emails).

2. HYPERLINKS = Did the publisher of the material that contained the link know the link directed readers to defamatory material, AND was there human intervention (I.E. Did the publisher endorse/repeat the defamatory content?—A deep link taking the reader directly to the defamatory page likely satisfies this)?

3. HOSTING COMMENTS = Did the publisher of the webpage actually know about the defamatory comment posted by the reader, AND did they fail to remove it within a reasonable amount of time? 

4. SEARCH RESULTS = Courts are interested in finding search engines liable.

5. PROCURING/ORGANISING PUBLICATION = Did the person commission OR encourage the publisher?

D1: When does P need to prove “substantial publication” of online defamatory material (Nationwide News v University of Newlands)?

For generally accessible websites & services, it’s reasonable to infer that people likely accessed the material. OTHERWISE, P must prove that at least one 3rd party accessed OR could reasonably be inferred to have accessed the material.

D1: What is the ‘multiple publication rule’ for online defamatory publication (Sellman v Slater)?

Each time defamatory content is accessed OR downloaded, it counts as a new publication.

What is the 2/7 defences (S 22 DA)?

CONSENT = D must prove P knew AND agreed to the specific material that was published—NOT just general consent to publicity.

What is the 3/7 defences (S 8 DA; TVNZ v Talley’s Group)?

TRUTH = Where the statements share the same core imputation, D can prove this core imputation was true OR not materially different from the truth by relying on statements not sued on. Where the statements are of different “stings”, D can prove the publication taken as a whole was in substance true by relying on statements not sued on that are of equal seriousness/character. 

What is the 4/7 defences (S 10, 11 DA), what are it’s 3 requirements (Mitchell v Sprott; Kemsley v Foot; Awa v Independent News Auckland), AND what must D prove if they aren’t the author?

HONEST OPINION =

1. Where the statement is a value judgement (E.G. film review), is the subject matter sufficiently identified so as to allow the reader to locate & judge the matter for themselves? Where the statement is an inference of conclusion from facts OR an opinion as to the existence of fact, can the statement be understood as opinion (the more imperative an “opinion” looks/sounds, the less likely it’ll be treated as “opinion”)?
   

2. The opinion must be based on facts that are true OR not materially different from the truth, which are set out in the publication itself OR are generally known by everyone at the time of publication.
   

3. The opinion must be genuinely held, albeit strong, exaggerated OR prejudiced.

Where the author IS D’s employee OR agent, D must show the opinion wasn’t their own AND they believe the opinion was genuinely held by the author. Where the author ISN’T D’s employee OR agent, D must show the opinion didn’t purport to be their own (or that of their employees/agents) AND they had no reasonable cause to think the opinion wasn’t genuinely held by the author.

What is the 5/7 defences, AND under what 3 circumstances will it apply (S 13 DA; S 14 DA & Tahana v Tertiary Institutes; S 15 DA & Peerless Bakery v Watts)?

ABSOLUTE PRIVILEGE =

1. PARLIAMENTARY PROCEEDINGS = Statements made in the House of Representatives, parliamentary proceedings (E.G. witness statements, live broadcasts) .

2. JUDICIAL PROCEEDINGS = Statements (written & oral) made by judges, jurors, parties, counsel & witnesses in courts & tribunals/authorities with court-like powers (E.G. authority under statute, dispute-resolution, inquiring into questions, determining rights/guilt, fair hearing, binding legal decisions). 

3. STATEMENTS MADE BY OFFICER OF STATE (ELECTED/APPOINTED OFFICIALS) TO ANOTHER IN COURSE OF DUTY

What is the 6/7 defences (S 16 DA, Adam v Ward & Templeton v Jones; S v W), what is a sub-type of this defence (Alexander v Clegg), AND how can P defeat it (S 19 DA)?

QUALIFIED PRIVILEGE = Where a person has an interest/duty (legal, social, moral) to make a statement to someone with a corresponding interest/duty to receive it (NOT gossip). Statutorily, this covers fair reporting of court proceedings, party pleadings, government inquiries, local authority meetings, trade/sporting/artistic/scientific body proceedings, international organisations, press conferences, delayed communication of parliamentary proceedings. Common law forms are also preserved (E.G. patient complaint to doctor’s employer).

Defence against attack = D may respond to an attack on their character/conduct, provided they go no further than reasonably necessary AND without malice (public attack allows for public response).

Once P has established this defence, P can defeat it by proving D was motivated by ill-will towards P OR took improper advantage (E.G. knowingly lying to destroy P’s career).

What is the 7/7 defences, what are the 2 limbs D must prove (Durie v Gardiner), AND what is a sub-type of this defence?

RESPONSIBLE COMMUNICATION ON A MATTER OF PUBLIC INTEREST =

1. SUBJECT MATTER INVITES PUBLIC ATTENTION, AFFECTS WELFARE OF CITIZENS, OR HAS CONSIDERABLE NOTORIETY/CONTROVERSY ATTACHED.
   

2. RESPONSIBLE COMMUNICATION = Even where facts are incorrect—assessed with regard to 7 factors (allegation’s seriousness, degree of public importance, urgency for public’s need to know, sources’ reliability, comment sought from subject of story & accurately reported, publication’s tone, defamatory statements necessary to communicate matter?)

Neutral reportage = Where the public interest lies in the fact that an allegation was made, not whether it was true, the court must be satisfied that D reported this fairly & disinterestedly considering (1) whether the source of the information is disclosed in the publication, (2) whether the tone of the publication is neutral (no sensationalism) AND (3) whether the timing & context of the allegation is appropriate (not revived for ulterior reasons).

What are the 3 types of remedy available to P if D is found liable for defamation (Williams v Craig, Staples v Freeman, S 28 DA, Manning v Hill; American Cyanamid, Dew v Discovery NZ; S 24 DA, S 25 DA, S 26–27 DA)?

1. DAMAGES = General damages to restore P to the position he would’ve been in had the defamation not occurred (accounts for reputational & emotional harm); additional special damages for actual pecuniary loss; additional aggravated damages where D’s conduct worsened the harm to P; additional exemplary damages where D acted in “flagrant disregard” of P’s rights. The amount of damages will be calculated with regard to the allegation’s seriousness, extent/reach of publication, D’s behaviour pre- & during trial, AND P’s social standing.

2. INJUNCTION (TO PREVENT FURTHER PUBLICATION) = For one to be granted, there must be (1) a serious question to be tried, AND (2) a balance of convenience (damage to P outweighs disadvantage to D). One won’t be granted where ‘truth’ OR ‘responsible communication on a matter of public interest’ defences are arguable. 

3. ADDITIONAL REMEDIES UNDER THE DA: P may request: Declaration that D’s liable in defamation (entitles P to solicitor-client costs); Retraction/Reply/Apology within 5 working days of learning of publication (if D agrees, D must offer to pay all reasonable expenses & pecuniary loss); Correction recommendation from the Court (if D complies, entitles P to solicitor-client costs; if D doesn’t comply & P wins in the full hearing, P will be awarded higher damages).