Defamation Act 1992

The Defamation Act 1992 is the main New Zealand statute dealing with defamation and some related malicious falsehood claims. It sets out when claims can be brought, the main defences, available remedies and a number of procedural rules for court proceedings.

For business owners, the Act is most relevant when you publish statements that could damage a person’s or organisation’s reputation. That can include allegations of fraud, poor workmanship, unsafe conduct, dishonesty, harassment, non-payment, regulatory breaches or other misconduct.

It also matters if your business is deciding whether to respond to a harmful publication made about you. A bad statement can create both reputational damage and commercial loss, especially if customers, suppliers, members or investors see it.

The Act applies broadly. It binds the Crown and applies to proceedings commenced after it came into force. In everyday business terms, it can affect media businesses, employers, associations, agencies, distributors and ordinary trading businesses that publish statements to customers, members, investors or the public.

Common trigger points include publishing a customer warning, naming a former employee in a public statement, posting allegations about a competitor, circulating complaint findings to members, issuing a press release after an internal investigation, or republishing third-party material without checking it.

A business can also face risk by forwarding or endorsing someone else’s accusation. Repeating a statement can still create exposure if the statement harms reputation and no defence applies.

The Act says defamation is actionable without proof of special damage. In practical terms, a claimant does not need to allege or prove special damage just to bring defamation proceedings.

For malicious falsehood claims such as slander of title, slander of goods or other malicious falsehood, special damage is also not required if the publication is likely to cause pecuniary loss to the plaintiff.

There is a special rule for body corporates. A company or other body corporate cannot succeed in defamation proceedings unless it alleges and proves that the publication has caused pecuniary loss or is likely to cause pecuniary loss. That is a key commercial filter for businesses considering a claim.

The Act also provides that a single publication constitutes one cause of action, no matter how many imputations the published matter contains.

The Act sets out several important defences. The first is truth. A truth defence succeeds if the defendant proves the imputations were true, or not materially different from the truth. Where the claim is based on all or part of a publication, the defence can also succeed if the publication taken as a whole was in substance true, or not materially different from the truth.

The second major defence is honest opinion. This applies to matter that includes or consists of opinion. If you are the author, you must prove the opinion was genuinely yours.

If you publish someone else’s opinion, the Act applies different tests depending on whether that person was your employee or agent. The publication must not purport to be your own opinion unless the legal requirements are met.

There are also defences of innocent dissemination and consent to publication. Innocent dissemination can matter for processors, distributors and those acting only in that capacity, but only if they lacked the relevant knowledge and were not negligent.

The Act recognises absolute privilege and qualified privilege for certain publications. Absolute privilege covers proceedings in Parliament, some related parliamentary publications, certain judicial and tribunal proceedings, and some communications for obtaining legal advice.

Qualified privilege protects specified matters and some reports listed in Schedule 1, subject to limits. For businesses, this can be relevant when reporting on court proceedings, public meetings, inquiries, company or society meetings, public registers, official notices and some government information.

But the protection is not automatic. Publication may lose protection if publication is prohibited by law or lawful order. For some Schedule 1 reports, the matter must be of public interest where published, and a defence can fail if a reasonable request for explanation or contradiction is not handled properly.

The Act also allows qualified privilege to be rebutted if the plaintiff proves the defendant was predominantly motivated by ill will or otherwise took improper advantage of the occasion of publication.

The Act gives several ways a dispute may be resolved or narrowed. A plaintiff may seek a declaration of liability.

A person who says they were defamed in a news medium may, within 5 working days after becoming aware of the publication, request a retraction or a reasonable reply in the same medium, with substantially similar prominence and without undue delay.

If the publisher agrees to publish a retraction or reply, the Act also requires an offer to pay certain costs and expenses. These include the cost of publishing a reply where that is agreed, solicitor and client costs connected with the publication of the retraction or reply, other reasonably incurred expenses connected with the publication complained of, and compensation for direct pecuniary loss.

The court may also recommend a correction. If a defendant publishes a correction in accordance with the court’s recommendation, the plaintiff is entitled to no other relief or remedy against that defendant in those proceedings apart from the costs position set by the Act.

The Act also allows punitive damages, but only where the defendant acted in flagrant disregard of the plaintiff’s rights.

The Act sets out matters that can reduce damages. Corrections, retractions, apologies and statements of explanation or rebuttal can all matter, depending on their nature, extent, form, manner and timing.

Proposed injunctions or declarations can also be relevant, as can delay for which the plaintiff was responsible.

The defendant may also prove specific instances of misconduct by the plaintiff to show the plaintiff’s reputation was generally bad in the relevant aspect. The Act further allows evidence that the plaintiff has already recovered damages, brought proceedings, or received or agreed to receive compensation for the same or substantially the same matter.

There are also cost and conduct rules worth noting. In proceedings against a news medium, the plaintiff must not specify the amount of damages in the statement of claim. If damages claimed are grossly excessive and the plaintiff recovers less, the court must award the defendant solicitor and client costs. Proceedings begun with no intention of going to trial are deemed vexatious.

The Act contains detailed procedural rules that matter once a dispute starts. Plaintiffs must give particulars of every statement alleged to be defamatory and untrue, and must identify the meanings alleged.

Defendants pleading truth must specify the factual statements relied on and the supporting facts and circumstances. Truth and honest opinion must be pleaded separately.

There are also notice requirements. If a plaintiff wants to allege that an opinion was not genuinely held, or that a qualified privilege publication was driven by ill will or improper advantage, notice must be served within the time set by the Act unless the court allows more time.

The Act also deals with multiple actions, consolidation, limits on later proceedings, and striking out for want of prosecution where no step has been taken for 12 months and no trial date has been fixed.

For businesses, the practical lesson is to keep disciplined records before and after publication. Good records help prove truth, show a statement was opinion, support a privilege argument, or justify a correction response.