What is defamation, and how can I defend such a claim?
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.
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!).
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.
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.
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.
This article is for general informational purposes only and does not constitute legal advice. While every effort has been made to ensure the accuracy of the information, readers should not rely on this article as a substitute for professional legal advice.