With the intense media interest in the Johnny Depp v Amber Heard trial, the law of defamation has recently been thrown into the spotlight. The antics of participants in the trial have been broadcast all across national news outlets and social media but rarely is defamation itself explained as a feature of the coverage.
New Zealand has had its fair share of high-profile defamation cases. Chris Cairns once won a handsome sum from a man who falsely accused the cricketing legend of match-fixing. On the flip side, businessman and politician Colin Craig, was ordered to pay an eye-watering sum to the executive director of the Taxpayers Union after Craig alleged that the director falsely accused Craig of sexual harassment of his former press secretary.
While the USA recognises two distinct forms of defamation, that being libel and slander, (respectively written and spoken statements) New Zealand law now makes no such distinction. There are three elements that are key to bringing a claim for defamation in New Zealand. These are that:
- The statement was itself defamatory. A defamatory statement can encompass many different things, however, it is generally a statement that tends to lower a person in the estimation of right-thinking members of society. It can also be any statement that is false and causes a level of discredit to the person. This can be in written and spoken form, in the form of pictures or images or more generally by any means of communicating a message or meaning to others such as gestures and looks;
- The words referred to the plaintiff. This is rather straightforward but an imperative part of defamation. In order to be defamed, the statement must refer to the plaintiff or identify them sufficiently. This could be by identifying them by name or by implication, for example by referring to a particular position only held by one person; and
- The words were published and the defendant was responsible for the publication. Publication in this context essentially means the communication of the defamatory statement to a third party so that the third party is aware of the statement. Whether or not the defendant is responsible for the publication is a matter of fact assessed based on the defendant’s role in the publication itself. For example, a defendant clearly causes publication where they yell a defamatory statement in a crowded room but it is less clear where a defendant privately writes down a defamatory statement which is later found and published in the local newspaper.
On the other side of the coin, there are many defences to a claim of defamation in New Zealand. These include (but are not limited to):
- Truth – where a statement is true, even if defamatory, it is not actionable.
- Honest opinion – where the defendant can prove that the statement made was a genuinely held opinion based on facts available at the time, they may have a defence to the claim.
- Privilege – statements made in particular circumstances attract privilege and are not actionable under defamation. Such circumstances include statements made in Parliament or in court or where the defendant was acting in good faith and without improper motive when they made the statement, although it cannot be made recklessly.
- Consent – it is a defence to a defamation claim where the plaintiff consented to the publication of the statement in question.
Where a plaintiff can establish a claim in defamation, the court will normally award some form of damages. This is to compensate the plaintiff for any loss of reputation and injury to feelings at minimum. The court can increase the awarded damages where the plaintiff shows significant reputational damage has been suffered, where the statement caused a high level of emotional harm, where there are quantifiable losses as a result of the defamatory statement and where the defendant acted with complete disregard for the plaintiff even while understanding it was illegal.
In New Zealand most damages awards are relatively modest. It is likely to be financially unwise for a plaintiff to bring a claim in defamation against a friend who has spread a defamatory rumour amongst their friend group as the potential damages would be minimal compared to the cost involved. In the case of a public figure like Johnny Depp however, the financial and reputational harm caused by the (allegedly) defamatory statements made by Amber Heard is claimed to be well into the millions of dollars. The ease of circulation of defamatory statements on line and on social media can quickly expand the extent of publication – even if not intended.
Whilst anyone can defame and be defamed, the costs associated with bringing court action may outweigh any benefits at the end. There are alternative mechanisms under which to pursue those who make defamatory or untrue statements against you, so before jumping into a costly and lengthy court case you should always consult a lawyer as to what your options may be.
Harmans’ litigation team can assist with all aspects of defamation and similar matters. If you believe you have been defamed or otherwise want to explore your options in relation to a false statement, give Harmans a call on 03-379 7835 or visit https://www.harmans.co.nz/contact/