Defamation Claims and Available Defences

What is defamation?

Defamation may arise from an allegation communicated to a third party that tends to lower a person’s reputation, expose that person to hatred or ridicule, or harm professional standing. Written, visual and digital publications, as well as spoken words, may attract liability.

A claimant ordinarily proves that the words referred to them, were published to a third party and were defamatory. The whole context, ordinary meaning, implication and audience are considered.

Principal defences

• Truth or justification: proving the substantial allegation is true.
• Honest comment: an honestly expressed opinion on a matter of public interest, based on true or privileged facts.
• Absolute privilege: complete statutory protection in defined settings such as parliamentary or judicial proceedings.
• Qualified privilege: a legal, moral or social duty or legitimate interest between maker and recipient; malice may defeat the protection.
• Innocent dissemination: where a distributor or intermediary neither knew nor could reasonably have been expected to know of the content, if statutory conditions are met.
• Consent, apology and correction: consent may affect liability; a timely apology, correction or offer of amends may affect damages.

Fact and opinion

Calling a statement ‘comment’ does not automatically protect it. The court asks whether the ordinary reader would understand it as a verifiable allegation of fact or a value judgment. Honest comment must rest on facts that are true or legally protected.

Digital publication

Reposting a social-media statement, link or headline may amount to a fresh publication. Screenshots, URLs, timestamps, reach data and requests for correction should be preserved properly. Injunctions or removal orders may be considered separately from damages.