In today’s digital landscape, anyone can be a publisher.

Whether it’s influencers on social media, writers for blogs and content platforms, or someone sharing someone else’s post on Facebook, the power to reach an audience is in nearly everyone’s hands.

The era of traditional media’s monopoly over information is behind us, and with it comes a host of new challenges.

The Defamation Act 1992 (the Act) is New Zealand’s framework for addressing defamation, including its proceedings, defences, and available remedies.

When we consider defamation in today’s world, there is a growing gap between who the Act holds accountable, and the changing landscape of who can be a publisher. The Act was created when traditional media – newspapers, TV, and radio – dominated the publishing world. Not, with the rise of everyday “publishers” on digital platforms, there are growing concerns about how accountability is applied across the board. Many question whether the current legislation keeps pace with this rapidly evolving landscape, potentially holding traditional media to a higher standard while social media and digital platforms fall outside its full reach.

We dive into defamation from a modern publisher’s perspective, including:

• What makes a statement defamatory
• The defences and remedies available under the Act
• Practical tips to help digital publishers stay on the right side of the law

What is a defamatory statement?

A defamatory statement is one that could reasonably harm someone’s reputation. For a defamation claim to be valid, the plaintiff (the person bringing the claim) must prove that the defendant made a statement about them and that it was published by the defendant. Given it is for the plaintiff to set the meaning or imputation of the statement(s) made by the defendant, it’s essential for publishers to carefully consider how their words might be perceived– as once it is published, it may be interpreted by the plaintiff very differently to how you intended it to be read or seen!

What defences are available?

The Act provides several defences for those facing defamation claims:

• Honest opinion: The defendant must demonstrate a reasonable basis for their opinion expressed in the alleged defamatory statement, ideally based on clear facts. This defence can be challenging, as the opinion must be rational and informed, not hearsay or unfounded speculation.
• Truth: The defendant needs satisfy the court that the statement was true, or not materially different from the truth. This is often easier said than done, as it can depend on if you are relying on information that conflicts with what someone else’s version of events.
• Consent: If the plaintiff consented to the publication of the statement, this defence might apply. However, consent is uncommon in defamation cases, as it typically precents a claim being filed in the first place.
• Privilege: Certain groups, like parliamentary officials or court witnesses, have immunity from defamation claim under specific conditions. For media, qualified privilege may apply, allowing them to report proceedings factually without liability – so long as they avoid adding persona; commentary or unsubstituted opinions.
• Responsible communication: This defence was recognised by the Court of Appeal in 2018. To succeed, the defendant must show that the subject matter was in public interest and that the communication was responsible, often demonstrated through reliable sources on record and a balanced presentation of the facts.

What remedies are available?

A successful plaintiff may seek a variety of remedies, including:

• A declaration of defamation
• A retraction or reasonable right of reply
• A correction published by the defendant
• Compensation for reputational harm

Top tips for digital publishers

To stay within the legal bounds, here are some practical tips for publishers of all kinds:

• Consider the piece as a whole: What impression does it give? Does is cast the subject in a negative light?
• Think about the subject’s reputation: What reputation does the named party have before I publish, and what is the likely effect of the publication going to be on their reputation once I publish? Could this publication worsen their standing?
• Watch for implications: Be mindful of any statements that imply dishonesty or criminal behaviour unless you have concrete evidence to back them up.
• Gather supporting evidence: Ensure you can substantiate any claims.
• Remember corporate defamation is different: It’s generally harder to defame a company than an individual, as the company must prove a financial loss.
• Prepare for claims proactively: Assume anyone mentioned could take legal action, so evaluate if your statements are defensible under the Act.

The rules of defamation apply to everyone, whether a media giant or an occasional poster on social media. While the law may not have entirely caught up with the digital age, being informed and cautious can protect publishers from unintended consequences. So, if you’re hitting “post” or “publish,” make sure your content is fact-checked, balanced, and legally sound. After all, in the world of publishing, a little caution goes a long way in keeping reputations intact – yours included.

If you’re navigating the complexities of defamation and need guidance, our team is ready to assist. With Source, access an in-house style legal team who can support you with the day-to-day legal needs – all within a fixed monthly retainer. Reach out today to learn more.