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Defamation is a type of tort that you can raise when you believe someone has said something about you that has damaged your reputation. It can be a confusing and complicated area of law. Additionally, it is not always easy to work out whether you will have a strong claim if you sue the person who said the damaging thing about you. However, some key questions can help make clear whether the event that occurred to you may amount to defamation or not. This article will focus on key things to ask yourself when you are considering bringing a case of defamation.

Is the Statement Defamatory?

To bring a case for defamation, you need to be able to point to a ‘defamatory statement’. This test is based on your reputation. You must ask yourself whether a statement that has been made about you would negatively impact your reputation in some way. This means the statement could cause people to: 

  • think less of you;
  • shun or avoid you;
  • discredit you; or 
  • expose you to hatred, contempt or ridicule. 

A classic example is if someone spreads a damaging lie about you.

Central to the legal requirement for defamation is what a ‘reasonable person’ would think. In other words, the question is whether the statement, viewed in the eyes of a reasonable person, would have any of the impacts listed above. When considering what ‘reasonable person’ means, the law will generally consider what a person of ordinary intelligence with some general knowledge and experience of the world would think.

Note that for the purposes of working out whether a statement is defamatory, it does not matter whether the person who made the statement intended to defame you or not.

Where Has the Statement Been Published? 

Another key question to ask yourself is where and how the statement has been published. This is a critical aspect of defamation. Note this does not necessarily mean that the statement about you must have been published in the normal sense of the world, i.e. in a book or on the news. The test in defamation law in New Zealand is narrower than that. All you need to show is that someone communicated a defamatory statement to another person. 

This means you cannot sue for defamation if someone calls you a liar to your face with no one around. However, you could sue them for defamation if they told someone else. You should consider whether bringing a lawsuit for defamation would be worth it if. Especially if not many people heard or saw the statement. This is because it is likely that the scale of harm to your reputation would be taken into account. Therefore, you may not be awarded very significant damages. 

Do You Want to Consider Litigation for Defamation?

Perhaps the most important question is to ask yourself whether you want to consider litigation for defamation, irrespective of how damaging the statement might be. This is because defamation proceedings can have something called the ‘Streisand effect’.

Essentially, if the purpose of suing for defamation is to protect your reputation and remove a defamatory statement about you from the public, defamation proceedings can have the opposite effect. This is even if you are ultimately successful in court. Defamation proceedings are usually long and expensive and sometimes the media covers them. Consequently, the very statement you want to remove from public circulation may be blown up. This could lead to:

  • people discussing it more; and
  • more harm to your reputation than there was originally.

You should also factor in that defamation proceedings are typically onerous and expensive undertakings. They require specialised lawyers and can involve jury trials. From the start of the process until it finishes, a defamation proceeding may last at least one year and sometimes even more. You should always consider the expense of bringing a defamation claim before committing to litigation. 

Key Takeaways

When you think you have a defamation claim, you should first consider whether the statement made about you lowered your reputation. To make a case for defamation, you do not need to show that a statement was published to a lot of people. It is enough if a defamatory statement was only communicated to another person. However, the costs associated with defamation might be high. If you want to know more about defamation or seek advice, contact LegalVision’s disputes and litigation lawyers on 0800 005 570 or complete the form on this page.

Frequently Asked Questions

Does it matter if you cannot prove who has seen the defamatory statement?

It depends on the context. For example, if someone posts a statement in a news article, a court might just assume that a third party has viewed it. However, the defamatory statement may have been published to a narrower audience and is more circumstantial. For example, the statement was spoken orally to a third party or posted on a private Facebook page. In this case, the court might require some evidence. 

Can statements directed at groups of people be defamatory?

The test for a ‘defamatory statement’ is exactly the same if the statement made is about a group of people. A member of a group of people will be able to sue in defamation if they can show that the words would be understood by a reasonable person to refer to them in particular. 

What are some alternative legal claims instead of defamation?

You could also consider raising a claim under the Harmful Digital Communications Act if the statement was made online. You could also look at whether a harassment or breach of privacy claim would be more suitable.  

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