Defamation law is often overlooked by article writers until it is too late. Here are some of the basics of New Zealand legislation and pointers to help prevent a libel complaint.
Even for a writer, defamation or libel were probably not words front of mind until recently. Now, they may conjure up images of a teary-eyed Amber Heard, desperately attempting to defend herself against ex-husband Johnny Depp’s defamation allegations (John C. Depp, II v. Amber Laura Heard (CL-2019-2911)).
In 2018, Heard wrote an op-ed for the Washington Post, including the statement that she was a “Public figure representing domestic abuse”, although Heard did not mention Depp directly. The highly publicised and successful trial provided a timely reminder to writers to be careful what they write.
Below are the fundamentals of the Defamation Act 1992 and practical suggestions to help you avoid a dispute.
The Basics of Defamation Law
Lord Atkin in Sim v Stretch  2 ALL ER 1237, defined defamation as, “A publication of an untrue statement about a person that tends to lower his reputation in the opinion of ‘right-thinking’ members of the community.
For a successful defamation claim, the claimant must establish three elements:
The statement must have been published to at least one third party.
The statement must identify the claimant; however, they do not need to be specifically named – as in the Depp v Heard case.
The courts are not concerned with the literal meaning of a statement, but what is implied.
Causing a sufficient degree of harm to reputation is potentially a fourth element. However, this is still developing under New Zealand law.
Tips for Avoiding a Defamation Claim
Although more likely for claimants to pursue the publisher, a claim could harm your reputation as a writer, so it is best avoided.
Tell the truth, the whole truth, and nothing but the truth
There is usually no liability where the defamatory meaning and publication are true.
Double-check your facts. It is not sufficient that you thought the statement was true. In seeking guidance from specialist defamation barrister Ali Romanos, he says, “If in doubt, leave it out.” Romanos also says, “Don’t speculate as to what other people know or think.” Intentions are hard to verify.
Be clear – words can be interpreted very differently from how you intended. Where facts are not yet confirmed, explicitly state that.
Be careful where your source is a third party. It can be difficult to prove truth if you do not have the information that was available to the original author.
Be explicit when voicing your opinion
A defence may be supported where the statement is an honest opinion rather than fact.
- Clearly state it is your belief and use language which reflects this.
- Include all the facts, especially if not commonly known to the reader. “The commentator is always safest when he or she sets out the facts … and then separately … explains the conclusion that he or she draws from them,” (Burrows and Cheer, 2021, P. 179)
For defamation to exist, the claimant needs to be identified. As in the Depp v Heard case, the claimant does not need to be expressly mentioned.
- Be mindful of the detail you include. How might the subject be recognised by those closest to them?
- Ask others to read your article – can they identify the subject?
Now you are better prepared to avoid a defamation claim, hopefully you can escape ending up in Amber’s shoes. Remember, you can always have your article critically examined by a specialist defamation lawyer.
A question to ask yourself – is publishing your article worth the risk of legal action?
This article is not intended as legal advice and does not replace the advice of a qualified legal professional. It is intended for information purposes only.
About The Author
Natalie Allen is a passionate writer with a law degree and marketing communications background. Her current role includes producing content for a magazine, newsletter, and social media for a charitable organisation. She is a mother to a young son and de-stresses from her busy life by practising yoga.