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Defamation

Defamation Introduction
• The interest protected is not the body, mind or property, but a person’s reputation – far less
tangible and definable.
• Controversial tort as it goes against freedom of expression. Usually protecting someone’s
interest in tort doesn’t come at the expense of another’s interest.
o Balancing the individual’s interest against the public’s interest in freedom of
expression.

Historical background
• Traditionally two separate torts:
o Libel – written defamation.
o Slander – oral defamation.
• NZ got rid of the distinction and includes both.

Defamation Act 1992

• S 4 – In defamation, it is not necessary to allege or prove special damage.
• Problems with the Act:
o Speaks nothing about how the tort actually works (isn’t a code).
o Deals with procedure but not the elements for liability.
o Mostly dealt with through common law.

The elements of a prima facie case in defamation:

1. The defamatory statement must convey a defamatory meaning.
2. The statement must refer to the plaintiff.
3. The defendant must have communicated the statement to any person other than the
plaintiff.

1. Capacity for defamatory meaning

• The question of whether a statement had the capacity to be defamatory is a question of law
(and thus determined by a judge). The question of whether the statement was actually
defamatory is a question of fact (and thus often determined by a jury).
• There is no entirely satisfactory definition of the word “defamatory”. Four possible UK
variants include a publication that:
a. Is calculated to injure the reputation of another, by exposing him to hatred, contempt,
or ridicule: Parmiter v Coupland (1840) UK
b. Tends to lower the plaintiff in the estimation of right-thinking members of society
generally: pSim v Stretch [1936] UKHL
c. Imputes lack of qualification, knowledge, skill, capacity, judgement or efficiency in the
conduct of his trade or business or professional activity: Drummond-Jackson v British
Medical Association [1970] UKCA
d. Tends to make the plaintiff be shunned and avoid and that without any moral
discredit on the plaintiff’s part: Youssoupoff v MGM Pictures Ltd (1934) UKCA
2. Difficult to land a singular definition of defamatory statement because there are so many
ways a person’s reputation can be lowered, and so it requires a contextual evaluation.

Berkoff v Burchill [1996] UKCA

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• Journalists call Berkoff “hideously ugly” in a film review.

• There is no entirely satisfactory meaning of the word “defamatory” – gives 4 variants above.
• “Hideously ugly”
• Held: defamatory capacity.
o Neill LJ – It would be wrong to decide that this doesn’t have the capacity to be
defamatory.
o Millett LJ (dissenting) – The words were spoken in jest. Doesn’t think it is defamatory
– a line-call whether it has the capacity to be defamatory.
o An allegation that an actor was hideously ugly was capable of being defamatory of
him on the grounds it exposed him to ridicule.

The determination of whether a statement has the capacity to be defamatory is essentially a two-
step test:
1. What natural and ordinary meaning do the words convey to the reasonable person?
2. Given the circumstances in which those words were published, would that person
understand them to be defamatory (i.e. have the effect of lowering a person’s
reputation)?

Note: The effect of this two-step test is that even where natural and ordinary meaning of the words
published is not defamatory in the abstract, the context of their publication may nevertheless mean
they are defamatory.

Charleston v News Group Newspapers Ltd [1995] UKHL

• Two actors from the Neighbours TV show sued a newspaper for defamation arising out of
the publication of digitally manipulated images. The newspaper had published an article
comprising photographs showing the plaintiff’s faces superimposed on the near-naked
bodies of models in pornographic positions. The text made it clear that the photographs had
been produced by superimposing their faces on the bodies of others without the knowledge
or consent of the plaintiffs and chastised the makers of the pornographic computer game.
• The actors believed that right-thinking members of society would think it was actually them.
• Held: No defamatory capacity.
o Once you read the article in context, it lost its defamatory meaning.
o The bane and the antidote must be taken together – a claim in defamation cannot be
founded on a headline or a photograph in isolation from the related text.
o No ordinary reader could possibly have drawn the inference that the plaintiff’s could
have been willing participants in the photographs either by posing for them or by
giving consent for their faces to be superimposed on the bodies of others.
• The standard is the reasonable reader.
o The reasonable reader does not have to be the actual readers (who may have only
read the headline), but the objective reasonable man.
• The context of publication means that any ‘bane’ might be cured by an ‘antidote’
o Does not necessarily mean that the words in the text of an article will always be
sufficient to cure a defamatory headline. It all depends on the context.
o Lord Nicholls - Whether the text of a newspaper article will, in any particular
case, be sufficient to neutralise the defamatory implication of a prominent
headline will sometimes be a nicely balanced question for the jury to decide
and will depend not only on the nature of the libel which the headline conveys
and the language of the text which is relied on to neutralise it but also on the
manner in which the whole of the relevant material is set out and presented.

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NZ Magazines Ltd v Hadlee [2005] NZCA

• An article was published which said Mrs McNaught never had an affair with Lady Hadlee –
“For the record, Anita had never met Lady Hadlee”.
• If we took the natural and ordinary meaning of this there would clearly be no defamatory
meaning. But the denial of an affair led to 2 defamatory imputations – (1) that Lady Hadlee
was having an affair, and (2) that Lady Hadlee was lesbian/bisexual.
• Held: Defamatory capacity.
o No smoke without fire – nobody was thinking about these rumours until the article
was published, and a reasonable reader may believe that she’d obviously deny it.
o Introducing the idea to the reasonable reader was sufficient to give rise to the
imputations argued for.
o Blanchard J – The reasonable reader would not think Lady Hadlee was having an
affair, but could reasonably think she was lesbian/bisexual.
o Barker J – A jury could think that the notional, reasonable reader could feel that there
was “no smoke without fire”… Even the “antidote” or refutation contained in the
article was not enough to refute the imputation that the plaintiff was lesbian or
bisexual.
• Blanchard J – The attributes of the reasonable reader.
a) The test is what would the ordinary reasonable person understand by the words
published.
b) The reasonable person is of ordinary intelligence, general knowledge, and experience
of world affairs.
c) The court is not concerned with the literal meaning of the words.
d) The natural and ordinary meaning necessarily includes what the ordinary
reasonable person would infer from the words used in the publication. The
ordinary person has considerable capacity for reading between the lines.
e) But the court will reject those meanings which are the product of some strained or
forced interpretation or groundless speculation.
f) The words must be read in context.
• Barker J – Agrees with Blanchard J’s attributes but adds:
o The hypothetical person must also be fair-minded, not avid for scandal, not unduly
suspicious, nor one prone to fasten on to one derogatory meaning when other
innocent or at least less serious meanings could apply.

Note: There is a defence of truth, but no defence of humour/jokes.

Innuendos
• Occurs when words have a meaning that doesn’t make sense to all people, but only a group.
• True innuendo – when you have extrinsic facts that were not part of a publication, but
change the meanings of the published words.
o A secondary meaning available to readers with access to external facts.
o True innuendo is an exception to the general rule that you take the ordinary,
reasonable reader.
• False innuendo – Simply involves an inference by the reader that creates a secondary
meaning. Does not create an exception.
• Compare inference and innuendo – see s 37(2) and s 37(3).

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Tolley v Fry [1931] UKCA

• T was an amateur golfer. The defendant, without the plaintiff’s knowledge or consent,
published adverts showing the plaintiff and his caddy each with bars of the defendant’s
chocolate protruding from their back pockets. The plaintiff said this carried an implied
defamatory message that he had been paid for the advertisement, and had ‘prostituted his
reputation’ as an amateur golf player.
• True innuendo [s 37(3)] – relies on knowledge of the reader that T is an amateur golfer.
• The plaintiff has to identify one meaning at the start of the proceedings. The defendant does
not get to prove the truth or untruth of any other meaning, but has to respond to that chosen
meaning.

S 37 Defamation Act 1992

1) In any proceedings for defamation, the plaintiff shall give particulars specifying every
statement that plaintiff alleges to be defamatory and untrue in the matter.
2) Where the plaintiff alleges that the matter is defamatory in its natural and ordinary meaning,
the plaintiff shall give particulars of every meaning that the plaintiff alleges the matter bears.
3) Where the plaintiff alleges that the matter that is the subject of the proceedings was
used in a defamatory sense other than its natural and ordinary meaning, the plaintiff
shall give particulars specifying –
a. The persons or class of persons to whom the defamatory meaning is alleged to
be known; and
b. The other facts and circumstances on which the plaintiff relies in support of the
plaintiff’s allegations.

Note: S 37(3) means that where the plaintiff alleges a true innuendo, the plaintiff must provide a clear
indication of who would interpret the statement in this way and why.

BCNZ v Crush [1988] NZCA

• A piece of land was sold by C to the Ministry of Works and Development for $118,000, which
was too much to pay for the property and was under investigation by the Auditor-General’s
office. The publications by BCNZ mentioned that C was a local solicitor and had been the
campaign manager for the local MP, Mr Sutton, in 1984, and that the property was leased by
the Labour Party and used as an electorate office by Mr Sutton.
o No smoke without fire – Imputation that he used his connections to sell the property
for a higher price, and thus acted improperly.
o BCNZ argued that they rejected those imputed meanings and were only proving the
truth of the literal meanings.
• It is the plaintiff that must state the natural and ordinary meaning of a statement and why it
is defamatory and untrue: s 37 Defamation Act 1992.
o The defendant must show that it does not have this meaning; it cannot try to
show that it has a different meaning.
• Held: Defamatory capacity.
o BCNZ had to respond to the plaintiff’s chosen meaning – imputation that he acted
improperly – not to the literal meaning.

Note: Templeton v Jones has been developed on in BCNZ v Crush. What is defamatory must have an
element of untruth in it i.e. the defendant must prove the truth of those statements in order for it not
to be considered defamatory.

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2. The statement must refer to the plaintiff

• Onus on the plaintiff to prove they specifically were defamed.
• Test: Would the statement reasonably in the circumstances lead persons acquainted
with the plaintiff to believe that the statement was referring to him or her?
• Becomes trickier, and quickly loses traction, when the plaintiff is not mentioned by name –
loses the ‘reasonable person’ strength.

Cassidy v Daily Mirror Newspapers Ltd [1929] UKCA

• The defendants published in a newspaper a photograph of Mr C and a Miss X together with
the words “Mr C, the race horse owner, and Miss X, whose engagement has been announced”.
The plaintiff (Mrs C) was known among her acquaintances as the lawful wife of Mr C, but the
defendants did not know this.
o 1920’s: Imputation that Mr C was not her lawful husband, but that she was living with
him in immoral cohabitation. Note: this imputation would not be defamatory in 2017.
o The plaintiff wasn’t mentioned in the photo or caption.
• True innuendo – certain people (her acquaintances) would take the statement to mean that
she is a liar and living in sin.
• Held: defamatory capacity.
o Publication was capable of conveying a meaning defamatory of the plaintiff, and that it
could convey to reasonably minded people an aspersion on her moral character.
o No need to directly refer to the plaintiff, because we can envisage circumstances where
B is implicated in a statement about A. Not being mentioned isn’t a bar on liability, but
the plaintiff still has to prove the defamatory meaning was about him/her.
o Words published about A may be held to be indirectly defamatory of B.

Problem – idea of group defamation.

• Cannot be defamed as a class, and an individual cannot be defamed by a general reference to
a class.
• The smaller the group and the more discrete the defamation the more possible it will be to
prove, but this will be a line-draw, and requires a contextual evaluation.

Brown v DC Thomson [1912] (Scotland SC)

• Article in Dundee Courier that impugned the religious authorities in the town of Queenstown
as issuing instructions to discharge any non-Catholic shop assistants. Queenstown was a small
town with only one bishop and six clergymen – no one actually issued these instructions.
• Was this group small and discrete enough to have an action in defamation?
• Held: eligible.
o Lord Dunedin –A group defamation may be put to a jury if the group is small
enough and the statement discrete enough for there to be a good chance that
their individual reputations were damaged.
o All about context and whether or not an individual would have a case.

3. The defendant must have communicated the statement to any person other
than the plaintiff.
• “Published” – onus on plaintiff to show that it has been communicated to people other than
themselves.
• General principle that if the publication is on TV, newspaper, radio etc. that it has been
communicated to someone else.

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o Difficult for the plaintiff to find an individual who actually saw or heard it. But the law
assumes someone did.
• Trickier when it comes to things like postcards, or modern media like a publication on the
internet.

Al-Amoudi v Brisard [2007] QB

• B is a terrorism finance expert. AA is a respected businessman. B publishes an article on his
website that “AA is a terrorism financier” – imputation that he is backing Al Qaeda.
• Held: no presumption of communication for internet publications.
o In the context of internet publications there is no presumption that the words
published were actually read, and no presumption that a reader who has read
one article on a blog will have read all the other articles.
§ Presumption only applies to old forms of media.
o The onus is on the plaintiff to prove that the material was accessed and downloaded.
§ However, will be pretty straightforward to see if an IP that didn’t belong to the
plaintiff/defendant accessed the page.

The parties to an action in defamation

(a) Eligibility of defendants other than the original author or main publisher.
i. The repetition and conduct rules.
ii. Processors and distributors
iii. Internet service providers
iv. Author causing publication
v. Hyperlinks and search engines
(b) Eligibility as a plaintiff.
i. Corporate bodies
ii. Governmental authorities

(a) Eligibility of defendants other than the original author or main publisher
• Not often that the original author of the statement who will be sued but instead usually the
owner of the publishing medium.
• Policy reasons for company liability:
o Usually sued because thousands of people see their publications. Broadcast media has
a much greater reach and so has a significant degree of impact.
o Reputational damage is significantly higher when the defamatory statement is
published by the company than by the author himself.
o The company should bear the responsibility for significantly higher damage.

The repetition and conduct rules

• The repetition rule – if you report or publish a defamatory statement, you are liable for
repeating it even if it is attributed to an apparently reputable source. Publically repeating a
statement can effectively be the same as making a direct statement.
o Justified because each publication gives cause for new and different impacts to an
individual’s reputation. This is especially so if it is repeated by news media – wider
scope and audience.
o The defence of privilege is an exception to this rule.

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• The conduct rule – truth can only succeed as a defence to a repeated defamatory statement
where the reasonable grounds for suspicion are based on some conduct of the plaintiff. The
defendant is required to give particulars of the relevant conduct of the plaintiff that has given
rise to suspicion.
o i.e. a defendant cannot simply say that someone else said the defamatory statement.

APN NZ Ltd v Simunovich [2010] NZSC

• The administration of the NZ fishing industry was a subject of public controversy. Each media
defendant had published statements about S intentionally engaging in unlawful fishing
practices, such as misrepresenting catch quantities. Statements were also published on the
relationship between S and the Ministry of Fisheries, alleging that the Ministry officials had
facilitated the unlawful practices of S.
o Imputation that S had engaged in corrupt and dishonest conduct.
• Issue: whether particulars for truth could extent to statements of others alleging that the
plaintiffs are corrupt, or could reasonably be suspected of being corrupt.
• Held:
o The expression of opinion by third parties may not be pleaded as particulars in a
defence of truth to an allegation of reasonable grounds of suspicion. The required
particulars are confined to “objectively provable primary facts”.
o The repetition and conduct rules were applied, meaning the defendants could not rely
on third party statements unless they could independently verify the truth of the
underlying allegation.

Processors and Distributors

• General rule: Every person who publishes or causes to be published defamatory material is
liable as a publisher of that material, and anyone who participated in that publication is also
liable.
o Every single person in the chain is a new action in defamation – company author;
proof-reader; printer; delivery man.
o Exception – s 21

S 21: Innocent Dissemination

Any person who has published the matter solely in the capacity of, or as the employee or agent of, a
processor or a distributor, is a defence if that person alleges and proves –
a) That the person did not know that the matter (i.e. the book, journal etc.) contained the
material that was defamatory; and
b) That the person did not know the matter was of a character likely to contain defamatory
material; and
c) That the person’s lack of knowledge was not due to any negligence on their part.

S (2): Interpretation
• “Processor” means a person who prints or reproduces, or plays a role in printing or
reproducing any matter.
• “Distributor” includes (a) a bookseller; and (b) a librarian.
Act aimed at booksellers, librarians, printers, delivery media – doesn’t adequately include new media
publishers – e.g. ISP’s.
Author causing publication – Woodgate v Harris [2011] NZHC
• H hated his neighbour W, and thought he was Lord Lucan. He goes to the NZ Truth newspaper
who publishes his comments. Other media groups repeated the story.

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• New causes of action for each newspaper company who published the comments. But NZ
Truth went insolvent – could W sue H?
• Held: yes.
o It is clear, that if a person orally communicates defamatory words to a reporter
for the purpose of having those words publicised in a newspaper that person will
be liable for such publication.
o The tests for liability for such republication are:
1. First, the maker of the statement authorises the repetition; or
2. Second, it can be inferred from the surrounding that the maker of the
statement anticipated and wished the words to be repeated in that form; or
3. Third, the repetition was foreseeable or a natural and probably consequence
of the publication.
o Not liable if the author did not know or could not foresee that there was a reporter
present.
• Note: this case was based on old media. Introduction of internet publications has created
problems with this rule.

Internet Service Providers

Bunt v Tilley [2007] QB

• ISP being sued – the defendant published a defamatory statement. Argument that the only
way they could publish this was through the ISP.
• Publication is a question of fact, and it depends on the circumstances of each case.
• ISP’s, in the same way as transmission towers, are simply conduit intermediaries. They don’t
play any part in the creation of the content, and often don’t know what is being transferred.
o Responsibility is lessened. No need to rely on the defence of innocent
dissemination when the ISP is not even eligible for liability.
• Legal responsibility has to be contingent upon a degree or awareness or assumption of
responsibility.
• Held: not eligible to be a publisher.
o Overwhelmingly large amount of information moves through an ISP – they have not
assumed responsibility. Simply facilitating communication in a passive way.
o ISP’s will generally not be treated as publishers.
• Note: Limited case law in NZ seems to accept Bunt v Tilley.

Godfrey v Demon Internet Ltd [2001] QB

• 6 years prior to Tilley. G learned that someone had posted a message to a Usenet (like a
bulletin board system that was a precursor to internet forums) discussion group. The
message, sent by an unknown source, had been forged to appear to have been sent by G. G
contacted DI (the ISP) to inform them of the forged message and asked that it be deleted from
DI’s Usenet news server. DI declined to remove the message, which remained on its servers
for ten additional days.
o In 2001, ISP’s were more active. They also provided their own content through Usenet.
News content was hosted and stored by the ISP.
o Other users of the ISP accessed the forged message.
• Held: eligible to be a publisher.
o Because the ISP was storing the information, there was an assumption of responsibility
taken by Demon Internet.
o DI took a more active role in the creation of the defamatory content.

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Tilley – mere conduit/passive.

Godfrey – storage/active.

Tamiz v Google [2013] EWCA

• Google owned Blogger, a blog-publishing service that allowed multi-user blogs. The blogs are
hosted by Google. On Blogger, there was a site with the defamatory material.
• Unlike the ISP in Tilley, Google knew there was defamatory material on the site because the
plaintiff had notified them of it. It took 5 weeks for Google to take the material down.
• Held: eligible to be a publisher.
o The most appropriate analogy was that of a giant notice board provided by Google on
which others post material. Google provides that notice board on its own terms and
conditions and has the power to remove or block material which does not comply with
those terms. Google not only provides the platform but provides tools to help a blogger
design the layout of his/her blog and provides a service for provision of
advertisements of a blog.
o Once notified, Google knew or had reason to believe that what it did caused or
contributed to the continued publication of the comments.
§ More control that the ISP in Tilley – especially when the plaintiff brought it to
attention.
o Google could thus be characterised as a publisher.

Karam v Parker [2014] NZHC

• K was a well-known sportsman and businessman. He was also a known supporter and friend
of David Bain, and was closely involved in trying to get his name cleared. Bain’s acquittal
attracted numerous comments on social media sites. K claims that many of the comments
defamed him by conveying that he lacked integrity and was dishonest. P was an administrator
of the Facebook page “Justice for Robin Bain” and creator of the Counterspin website. K sued
P in respect of comments that P himself posted on these sites and also as the publisher of
comments posted by third parties.
• Social media are no different from ordinary websites – if you publish there you are just as
much at risk of a defamation action.
• Held: eligible to be a publisher.
o Even when you publish the statements of others, you may be liable for those if you
actively publish them – for example, by acting as an administrator of a website or page
where you encourage people to post.
o As the FB administrator, he had the power to edit and remove posts. Further, it is clear
P knew the posts on the FB site did or were likely to contain defamatory material, and
can thus be regarded as a publisher.
o As the creator of Counterspin, he can be regarded as a publisher for similar reasons.

Hyperlinks and Search Engines

A v Google New Zealand Ltd [2012] NZHC

• The plaintiff was a psychiatrist. Defamatory statements were posted about him on a website
in the US hosted by a third party. When the plaintiff’s name is searched in Google, the search
results included defamatory statements in the snippets under the hyperlink that will take a
person to the offending websites.

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• When a search is conducted, the engine runs an automated search process on the keywords
according to the pre-programmed algorithms, and produces a list of results. The results are
in the form of a list of hyperlinks to web pages in order assessed by relevance. Under each link
is a snippet from the web page that demonstrates the page’s relevance to the search.
• Held: not eligible to be a publisher.
o The defendant does not have the requisite control of or responsibility over Google
search results, and thus is not eligible for liability.
o Whether or not search engines are “publishers” is a novel issue in NZ. It requires
determination of complex issues of law in a proper factual context. There may be need
to consider whether there is a “stamp of human intervention” in the way that the
search engine programme is written, and to address public policy concerns as occurred
in Crookes v Newton.

Crookes v Newton [2011] (Canada SC)

• N was the owner and operator of a website containing commentary about various issues. One
article he posted on it contained hyperlinks to other websites, which in turn contained
defamatory information about C.
• Freedom of access of information (majority):
o Traditionally, the form the defendant’s act of publication takes and the manner in
which it assists in causing the defamatory content to reach the third party are
irrelevant. Applying this traditional rule to hyperlinks, however, would have the effect
of creating a presumption of liability for all hyperlinks. This would seriously restrict
the flow of information on the Internet, and, as a result, freedom of expression.
o Hyperlinks essentially act as footnotes, and are by themselves, content-neutral.
Inserting a hyperlink into a text gives the author no control over the content in the
secondary article to which he or she has linked.
o Only when the defendant presents content from the hyperlinked material in a
way that actually repeats the defamatory content should that content be
considered to be “published” by the defendant.
• Held: not eligible to be a publisher.
o Nothing on N’s page was itself alleged to be defamatory. Since the use of a hyperlink
cannot, by itself, amount to publication even if the hyperlink is followed and the
defamatory content is accessed, N has not acted as a “publisher”.

Metropolitan International Schools Ltd v Designtechnica Corp [2010] EWHC

• Google search – does Google take responsibility for defamatory results on the snippets?
• Held: not eligible to be a publisher.
o No human input – snippets are created by algorithms.
o Google plays the role of a facilitator.
o No assumption of responsibility due to their passive role.
• Same decision as A v Google

Note: Tilley, Tamiz and Designtechnica (all UK cases) tend to give the impression that massive ISP’s
and search engines will not be eligible as a publisher. Limited NZ case law – Karam; A v Google.

Murray v Wishart [2014] NZCA

• Mr W is the author of a book about Ms King. Ms King was the mother of the Kahui twins, who
died at 3 months old. Their father was charged, but acquitted, with their murder. During the

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trial he falsely suggested that Ms King had inflicted the fatal injuries – suggestions implicating
Ms King generated considerable public interest. Mr M learned of the impending publication of
Mr W’s book. He created a Facebook page called “Boycotting the Macsyna King book”. He
posted comments on Twitter and on the Facebook page criticising both Mr W and Ms King.
Numerous other people posted defamatory comments on the page.
o FB not liable – doesn’t know what each group and its administrators are publishing.
Takes a passive role in regards to FB groups, has not assumed responsibility.
• High Court: Two types. Publisher if:
o First, they know of the defamatory statement and fail to remove it within a reasonable
time in circumstances that give rise to an inference that they are taking responsibility
for it. A request by the person affected is not necessary.
§ Actual knowledge
o Second, where they do not know of the defamatory posting but ought, in the
circumstances, to know that postings are being made that are likely to be defamatory.
§ Constructive knowledge
• Defamation is an intentional tort in the sense that you must intend to publish the material but
not in the sense that you intend to defame the person.
• Court of Appeal:
o The CA was asked to treat the publication of the third party statements on FB as
analogous with – the posting of a notice on a notice board; the writing of a defamatory
statement on a wall of a building; a defamatory comment made at a public meeting.
§ Problem with taking old media precedent and applying it to new media is they
have nothing in common with how they apply.
o Concerns with ‘ought to know’ test:
§ Puts a FB page host who does not know of a defamatory comment on the page
in a worse position than a host who actually does – ought to know test makes
the host a publisher as soon as the comment is posted.
§ Makes the FB page host liable on a strict liability basis, solely on the basis of the
existence of a defamatory comment. Once it exists, he cannot do anything to
avoid being a publisher.
§ Gives undue preference to the interests of the defamed person over the right to
freedom of expression.
§ Uncertain in its application. Given the widespread use of FB, the law should
define the boundary with clarity and in a manner that hosts can regulate their
activities to avoid defamation actions.
§ Innocent dissemination defence would be difficult to apply to a FB page host,
because the language of s 21 is aimed at old media and appear to be inapplicable
to internet publishers.
o These concerns lead us to conclude that the actual knowledge test should be the
only test to determine whether a FB page host is a publisher.
• Held: Mr Murray was not a publisher of the third party comments.
o Cannot be a publisher of the third party statements unless the requirements of the
actual knowledge test were met.
o Mr M took steps to moderate and block any defamatory comments he came across.

(b) Eligibility as a plaintiff

Two exceptions to the general rule that the statement must refer to the specific plaintiff.
1. Corporate bodies
2. Governmental Authorities

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Corporate Bodies
• Where a company wants to bring an action in defamation, s 6 provides a qualifier.
• S 6 – Proceedings brought by a company shall fail unless the company alleges and proves that
the publication has (a) caused pecuniary loss; or (b) is likely to cause pecuniary loss.
• Justification – idea of a corporate reputation only makes sense financially.

Ayers v LexisNexis New Zealand Ltd [2014] NZHC

• Statements made in two letters published by LexisNexis. The letters were written in response
to an article written by A was the sole director and shareholder of Elementary, and alleged
that the company had suffered very serious injury to its reputation, and suffered over
$200,000 loss of profits.

Tairawhiti District Health Board v Perks [2002] NZHC

• The defendant published three newsletters and a letter which the plaintiff alleged defamed
them. The plaintiff sued as the successor of the TDHB (s 165 – derivative action).
• S 6 of the Defamation Act reflects the common law rule that a corporate plaintiff’s claim must
sound in money. The section imposed no obligation for the plaintiff to plead special damage.
In referring to pecuniary loss, the section was referring to injury to reputation in the way of
the plaintiff’s trade or business. It was not referring to money spent on initiating the
defamation proceeding.
• Held: No eligibility to bring proceedings.
o Damages can only be awarded to a corporate plaintiff in respect of commercial loss,
however suffered and not on account of other forms of harm or damage to reputation
as were available when the plaintiff was a human being.
o The company was a monopoly supplier of health services to the area. It was difficult to
see how the company had a trading reputation. The evidence did not establish that it
suffered loss as a direct result of the defamatory statements.
o Necessary for the plaintiff to have shown that the defamatory statements caused
people to shun its health services and take their money elsewhere.

Governmental Authorities
• Government authorities cannot sue – common law rule that precludes them from bringing an
action.
• Justification – our right as citizens to criticise and hold the Government to account.

Derbyshire CC v Times Newspapers Ltd [1993] UKHL

• Lord Keith – Local authorities must be open to criticism as political and administrative bodies,
and so cannot be allowed to sue in defamation. Such a right would operate as a ‘chill factor’
on free speech.

Tairawhiti DHB v Perks

• The limits of the Derbyshire principle have not yet been settled, and the reasoning in that
decision may well apply to a District Health Board.

Defences to defamation
1. Consent
2. Truth

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3. Honest Opinion
4. Privilege

1. Consent
• Straightforward defence – so long as the plaintiff consented to the publication of the material.
Must be clear and explicit consent.
• S 22 – It is a defence to proceedings for defamation if the defendant alleges and proves that
the plaintiff consented to the publication of the matter that is the subject of the proceedings.
• Onus on the defendant.

2. Truth
• Justification – if the imputation is true, you ought not to be able to sue the defendant. Even if
it has damaged your reputation, you shouldn’t have a right to protect a false reputation.
• Complicating factors:
o BCNZ v Crush – BCNZ alleged he sold land at an inflated price and was being
investigated. Court held that the truth has to go to the imputation chosen by the
plaintiff, not the literal words.
o Simunovich v TVNZ – News media argued that MP’s said multiple people, including S,
were corrupt. Winston Peters said this in Parliament, and so had absolute privilege.
However, TVNZ published his comments (repetition rule), and SC held every new
defendant had to prove the truth of the imputation provided by the plaintiff.
• Doesn’t require the defendant to prove every aspect of the imputation. Flexibility provided by
s 8(3) “not materially different”.

Section 8
• S 8(2) – the defendant may allege and prove any facts contained in the whole of the
publication.
• S 8(3) – the defence of truth shall succeed if:
a. The defendant proves that the imputations were true, or not materially different from
the truth; or
b. Where the proceedings are based on all or any of the publication, the defendant proves
that the publication taken as a whole was in substance true, or was in substance not
materially different from the truth.

Templeton v Jones [1984] NZCA

• Note: How defamation proceedings functioned before the Defamation Act 1992.
• The plaintiff was a candidate for the Ohariu electorate seat in the 1984 general election. The
defendant was the sitting member for the seat and a member of the National Party. On a TV
programme, Mr T described Mr J as a man who despised bureaucrats, politicans, women, jews
and professionals.
• Before the DA1992, the plaintiff had the ability to pick and choose the allegation out of the
wider context (cf. current law in Charleston and Hadlee).
o Mr T as the defendant had the ability to prove every single other allegation, except the
one regarding Jews.
o Mr T showed a statement about Mr J admiring Hitler, but J succesfully argued that this
didn’t prove the truth of the imputation that he despised Jews.
• Held: liable in defamation as he couldn’t prove the truth of the Jews allegation.

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• If the case were decided today – Mr T, as the defendant, could use the defence of truth to argue
that it either wasn’t materially different from the truth, or that it was the truth in context of
the politics of hate.
o But – the defendant still has to meet the allegations as set by the plaintiff. Onus is still
on the defendant to prove the imputations (in context) were true.

Note: s 8(2) was introduced as a response to the problematic precedent set by Templeton.

Television New Zealand Ltd v Haines [2006] NZCA

• The Holmes programme aired a critical exposé of the Haines company. H contends that the
context of the broadcasts had some or all of the following natural and ordinary meanings – H
rips off their customers; are dishonest; operate in a thuggish or intimidatory manner; are not
to be trusted; are unprofessional, incompetent or incapable of performing their work in a
workmanlike manner.
• S 8(2) makes it clear that, if a plaintiff complains of only part of a publication, the defendant
may prove the truth of any facts complained in the whole of the publication to show the
context of the statement complained of. This section, coupled with s 8(3)(b), means that
Templeton v Jones is no longer good law in New Zealand.
• Held: put to the jury.
o The plaintiff must first establish the publication. Next, it must satisfy the judge that the
publication is capable of having the imputations contended for. It must then prove to
the satisfaction of the jury that the words use have one or more of the imputations
identified. If a plaintiff fails to do that, it will lose at this point. It is at this point that the
defendant may argue that the words used do not bear the meaning contended for by
the plaintiff.
§ If the plaintiff chooses an absurd imputation, it will be difficult to prove capacity
before the judge, and even if they do, will be difficult to show credibility before
a jury.
o If a plaintiff succeeds, then a defendant may defend itself, in terms of s 8(3)(a), by
satisfying that the imputation is true or not materially different from the truth. It is
insufficient for a defendant to suggest that, even though the words are capable
of bearing the defamatory meaning complained of, they also bear a lesser
meaning, which may be proven to be true.
§ The defendant has to meet the meaning set by the plaintiff – s 8(2) reaffirms the
law as articulated by BCNZ v Crush.

APN Ltd v Simunovich

• Reaffirms conduct rule – f A defendant who repeats an allegation of a defamatory nature could
only succeed under a defence of truth by proving the truth of the underlying allegation, not
merely the fact that the allegation had been made (e.g. that someone else had said it).

3. Honest Opinion

S 9-12, 38 Defamation Act 1992 provides three elements:

1. The words complained of must be recognisable as an expression of opinion rather than an
assertion of fact.

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a. Woodgate v Harris – unclear whether the fact she thought her neighbour was Lord
Lucan would succeed under the defence of honest opinion. Has to be a clear opinion to
succeed. Although the difference between fact or opinion was unclear, the judge put it
to a jury because he thought the defence would fail.
b. Simunovich – two qualifications for a defence of honest opinion:
i. The defendant can not rely on facts of which it was unaware at the time of
publication but is confined to facts known at that time.
ii. A fact does not have to be independently proved if it was referred to as a fact in
a fair and accurate report which attracts privilege and upon which the
defendant was commenting.
c. Karam v Parker – That is a question to be determined by reference to the whole of the
publication, rather than specific statements or words. The importance of context is that
isolated statements, which appear as assertions of fact may properly be read as
comments on or conclusions drawn from other facts (i.e. opinions) when read against
the entire publication.

2. The opinion must be based on true facts that were stated or referred to in the words
complained of, or were generally known at the time of publication.
a. Simunovich – See the 2 qualifications above.
b. Karam v Parker – The facts on which the opinion is based must be shown to be true or
not materially different from the truth or must be based on facts generally known at
the time of publication. However, even if several facts are relied on, not all need to be
proved to be true; one fact that supports the comment may be sufficient.

3. The opinion must be “genuine”

Section 10
S 10(1) – A defence of honest opinion by a defendant who is the author of the opinion shall fail unless
he can prove that the opinion expressed was his genuine opinion.
S 10(2) – A defence by a defendant who is not the author shall fail unless:
a) Where the author was an employee or agent of the defendant at the time of publication, the
defendant proves that
i. The opinion, in its context and in the circumstances of the publication, did not
purport to be the opinion of the defendant; and
ii. The defendant believed that the opinion was the genuine opinion of the author.
b) Where the author was not an employee or agent, the defendant proves that
i. The opinion, in its context and circumstances of the publication, did not purport to
be the opinion of the defendant or of any of their employees or agents; and
ii. The defendant had no reasonable cause to believe that the opinion was not the
genuine opinion of the author.
c) A defence of honest opinion shall not fail because the defendant was motivated by malice.

Problems with s 10:

• Not a question of reasonableness, but a question of whether the defendant had any cause to
believe it was not honest.
o Bigots can express their hateful views, and so long as their views are genuinely held,
the defence will succeed.

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• If the defendant is trying to express something purely as an opinion (as a precaution, to rely
on the defence), the defence will not work.
o Honesty is the crux of the defence.
• Requirement of genuineness becomes difficult with corporate bodies – such as news media.
o S 10(2) attempts to deal with the issue. To succeed, the company needs a natural
person to be the ‘vessel’ – the connection between the news media as the defendant,
and the person who expressed their opinion.
o Whoever wrote the defamatory statement needs to provide evidence that it was an
opinion, which is then attributed to the company/defendant.
• Honest opinion is similar to truth in that it is based upon a set of true facts, but honest opinion
is about an opinion and critically whether the defendant knew of the existence of the facts at
the time.

• Element 1: Determining the meaning (the statement must be defamatory):

o Berkoff v Burchill [1996] 4 All ER 1008, 1010-1021.
o Laws v Otago University Students Association [2021] NZDC 2704, [1]-[11], [23]-[31].

• New Zealand Magazines Ltd v Hadlee (No 2) [2005] NZAR 621 (CA), 622-634.

Sellman v Slater [2018] 2 NZLR 218 (HC) threshold of harm

• HC not prepared to abandon the centuries old presumption of harm which has benefited
plaintiffs. The Court concluded that a different test should apply, and held that if the
defendant can show the statement caused less than minor harm, the claim will be
defeated. Palmer J :
• “I have difficulty with the notion ... that a court can routinely use its ability to deal with
abuses of process to stop a proceeding properly founded in law, because of something the
law does not require (insufficient damage to reputation). The right of a person or group to
access the courts in order to vindicate their legal rights has a high constitutional value in
New Zealand.”

• public health workers, (Sellman, Swinburn and Bradbook ).

• llege Slater, Graham and FCL published defamatory content about them.
• They claim that blog posts and comments were personally abusive about the plaintiff
• if a reasonable person reading or hearing the statement would think worse of the person
in more than a minor way, it is defamatory

Stocker v Stocker [2019] 3 All ER 647 (UKSC) [l]-[51], [61]-[62]

• General truth of statement
• Stocker Went on her ex-husband' gf's FB and commented he 'tried; to strangle her, had made threats,
there were "gun issues"
• held this did not remove the sting (bane) in her stating that he was a dangerous man .
• FB post, simply understood as just that. It is not an academic piece of writing, so it is mportant not to
be over analytical about social media, because it lacks forward thinking and reflection.

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• Element 2 -The statement was about the Plaintiff:

• plaintiff must prove that the defamatory words were published about him or her: in other words it must be
proved that it is the plaintiff who has been defamed. The test is whether reasonable persons would
reasonably believe that the words referred to the plaintiff.
o s 6 Defamation Act 1992
o Normally this isn’t too contentious.

• Element 3: The statement was published by the defendant:

Sellman v Slater [2018] (HC)
o multiple publications of the same statement
o Australia courts affirmed multiple publication rule - to maintain the multiple publication rule
UK courts HELD: every time the post is accessed, this constitutes a new publication -
maintaining the "multiple publication rule"
o Blog is continuously available and hence continuously published.

Murray v Wishart [2014] (CA)

• Parties are liable for repeating statements made by others

• there must be an audience for it to amount to defamatory content ; continuous accessibility and
continuous publication points to defamation. Murray v Wishart
• allegedly defamatory comments by anonymous third parties were posted on a Facebook
page established by defendant, who also used Twitter to publicise the page.
• The page was set up to discuss the release of a book co-authored by the plaintiff re twins
died from non-accidental + whose killer was never identified.
• d argued as the mere host of the Facebook page, he was not a publisher.
• CA: a publisher would be required to have actual knowledge;they know about the
defamatory statement and fail to remove it within a reasonable time such that it can be
inferred they are taking responsibility for the statement.

§ s 21 Defamation Act 1992

• In New Zealand, ISPs may be able to plead “innocent dissemination” under s 21 of the
Defamation Act 1992, but the wording, “a distributor or processor”, does not seem apt to
cover ISPs.
• NZLC recommended legislative amendment in this country to deal with the point.. This
could provide a defence where anyone who is not “the author, editor or publisher” can
show they took reasonable care, and had no reason to believe that what they did led to
publication of a defamatory statement.

Defences
• Truth (Justification):
o s 8 Defamation Act 1992

o Television New Zealand Ltd v Haines [2006] 2 NZLR 433 [1]-[70].

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• In this case H contended that the natural and ordinary meaning of certain broadcasts by
TVNZ was, inter alia, that H’s companies ripped off their customers, were dishonest, were
thugs, were not to be trusted and were unprofessional and incompetent.
• CA: TVNZ was confined to the defamatory imputations pleaded by the plaintiff
• Held: nothing in s 8 or its legislative history which indicated that any remedial response
was intended

o Stocker v stocker: general truth

o The Court of Appeal: it “is a complete answer to the plaintiff’s claim if the
defendant proves that the defamatory words are true in substance, even if not
strictly accurate in minor detail”

• Honest Opinion/Fair Comment

o ss 9 – 12, 20, 38, 39 Defamation Act 1992
o Laws v Otago University Students Association [2021] NZDC 2704, [33]-[64]
o Sellman v Slater [2018] 2 NZLR 218 (HC) [1]-[4], [47]-[69].
• honesty of the opinion, not its reasonableness.
o

Class 19: Defences

• Qualified Privilege/Public Interest Communication/Reportage
o ss 16-18 Defamation Act 1992
o Lange v Atkinson [1998] 3 NZLR 424, 427-430, 434(ln44)-447, 462-464, 467(ln44)-
473.
o Lange v Atkinson [2000] 3 NZLR 385 (CA) [7]-[13], [18]-[22], [37]-[49].
o Durie v Gardiner [2018] 3 NZLR 131 (CA) [8]-[22], [35]-[86], [92]-[99]
• Absolute Privilege
o ss 13-15 Defamation Act 1992
o Lange v Atkinson [1998] 3 NZLR

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