Defamation for the Average Plaintiff

Friday, May 03, 2013

This article was prepared in April 2013. It is intended as general information and not specific legal advice. If you want legal advice about a problem, you can contact the author below.



Is making a claim in defamation something that only the rich and famous should consider? After all, they have more reputation to lose and more money to pay legal costs.

It would be financial suicide for the average person or business, despite being the subject of defamatory statements, to seek any sort of remedy, right?

With the proliferation of Twitter, Facebook, blogs and other social media websites, the potential for defamatory statements being made about you is higher than it has ever been.

This article is a general overview of the law of defamation, what you can do if you have been defamed, and what financial consequences there might be for you.


Defamation – What is it?

You may have heard of libel and slander. Basically, libel means an attack on someone's reputation in writing. Slander means the same thing but in oral form. In New Zealand, you don't need to worry about the distinction. An action under the Defamation Act 1992 (the "Act") covers both libel and slander and the rules are the same for both.

The Act does not define defamation. Case law provides that defamation is the publication of a false statement that:

  1. Lowers you in the estimation of right-thinking members of society generally; or
  2. Is your discredit; or
  3. Is calculated to injure your reputation by exposing you to hatred, contempt or ridicule; or
  4. Makes other people shun and avoid you.


What is a 'publication'?

You need to show that the statement was conveyed to at least one other person other than yourself. It does not have to be published in a newspaper. Statements on internet websites are also publications.


What can you do about it?

You can write to the author or publisher and ask them to retract the statement or allow you a reasonable reply.

Section 25 of the Act allows you to make such a request within five working days from the day that you became aware of the statement or article. If they agree to a retraction, then they must also pay your expenses and costs incurred in making the request, including any legal fees. They also have to pay you compensation for any monetary loss you suffered.

So for example, if you are the owner of a restaurant and a newspaper writes an article about how your kitchens are filthy and infested with rodents, you can ask them to retract the article if those statements are false. If the newspaper agrees to retract the article after being provided with evidence that their article was false and defamatory, then they also have to pay your costs and any loss in business you suffered because of their article.


What if I have not suffered any financial damages?

Section 24 of the Act allows you to seek a declaration from the Court that the publisher or author is liable in defamation. If you are successful in proving that the statements are defamatory and you are not claiming any damages, the Court can make a declaration that the statements are defamatory and award all of your legal costs.

This is significant because the usual procedure is that a successful plaintiff recovers only about 33% of their costs from the defendant(s). By letting you recover all of your legal costs, the Act provides a mechanism for those with strong claims to make those claims without fear of being out of pocket.


What do I risk?

The main risk is that a Court might find that the statements are not defamatory. You would then have to pay costs to the defendant(s). The silver lining here is that the defendant(s) do not usually get all of their actual costs back from you. As mentioned above, the costs recoverable are about 33% of actual cost.

You also have to pay your lawyers. That is very important.


Want to know more?

Speak to Kishen Kommu or Craig Andrews.  Kishen and Craig are both specialists in the area of civil litigation.