How to avoid defamation – Steven Price

Beware the defamation minefield … New Zealand barrister Steven Price has a 12-point checklist that’s especially useful for the unwary

How do you avoid being sued for defamation? That’s easy. Don’t ever say anything interesting. If you do want to say something that might reflect negatively on someone else, there is always a chance that they will sue you for defamation.

It doesn’t matter how careful you are. Some people will sue out of spite or revenge, or to cause you financial pain, or because they feel they have to be seen to defend their reputation.

Some will sue to try to force you to retract, even though they know you’re right. Some sue for sport. But it’s rare. Usually people don’t sue, even when they have been defamed.

Still, defamation lawsuits, when they occur, are usually expensive, technical, drawn-out, stressful affairs. You are better off avoiding them if you can. So it makes sense to minimise the risks. You can do that by writing in a way that makes it hard to sue you.

Here are my twelve golden rules for minimising the risks of getting sued for defamation.

1. Be aware of what you’re saying

In defamation cases, you are liable not just for what you say expressly, but what ordinary people will read between the lines. You are also liable for publishing a defamatory statement made by someone else, even if you quote them accurately. You need to identify any “stings” in what you write the barbs that affect someone’s reputation. What will ordinary, reasonable, fair-minded people take it to mean?

2. Control the meaning

The first battle in a defamation case is usually over what the words mean. Don’t leave this to chance. Plaintiffs like to exploit ambiguity, claiming that the audience will understand it in a defamatory sense. You should try to eliminate ambiguity and convey your meaning precisely.

3. Only say what you can prove

Truth is usually the most important defence in a defamation claim. Ask yourself what evidence you could put before a court if someone challenged you, and how convincing that evidence would be.

Do you have sources? Are they credible? Do they have first-hand knowledge? Would they be willing to give evidence? If you’re relying on documents, do you have someone who can authenticate them?

4. Pick the right “tier” of meaning

Many defamatory statements involve some sort of accusation or allegation. The courts distinguish between different “tiers” of allegation, depending on how equivocally the accusation is put. At one end is an allegation of guilt – Jack is corrupt.

Next down is the suggestion that there are reasonable grounds to believe or suspect guilt – Jack is suspected of corruption; or Is Jack corrupt? Then there is an inference that there are reasonable grounds for inquiry – Police should investigate whether Jack is corrupt. It’s much easier to prove a third tier meaning like this than a first tier one. You only need evidence pointing to guilt rather than proof of it.

Rules 1 and 2 above suggest that you should pick out the tier that you know you can prove.

The safest thing to do is to use the exact language of the courts: There are reasonable grounds to suspect Jack is corrupt. That may be clunky, but it will seldom leave any ambiguity for plaintiffs to exploit.

5. Say what you don’t know

This follows from the above rules. If you are open with your audience about what you don’t know, and what you’re not alleging, then it’s very hard for a plaintiff to argue that readers will take more from it than that.

6. Use the language of opinion

There’s a defence called honest opinion (it used to be fair comment) for those who are expressing genuine opinions on accurate facts that are set out or understood by the audience. So make it clear that you’re expressing or republishing a view.

Say “I think”, “he believes”, “she reckons”, “they claim”. Say whose opinion it is. Use phrases that are evaluative, not factual – “I think his behaviour was disgraceful”. Use rhetorical questions rather than assertions of fact. Use visuals to clue readers in to the fact that they’re getting opinions, as in a letters to the editor page.

Instead of making factual allegations, use the word “seems” or “appears” (Jack seems to be corrupt), which at least opens the door for an opinion defence.

7. Make sure the opinion is based on true facts

Ideally, you should set those facts out, and keep them separate from the opinion. The facts don’t need to justify the opinion, they just need to provide a platform for it, so that the audience can tell it’s an opinion and have some idea about what it concerns.

If the facts are already in the public domain, you don’t need to do more than nod toward them.

8. Put them together

Why not take advantage of several defences at once? Jack is a police officer, I saw him at a caf being given a package by Nick; shortly afterward, the charges against Nick were dropped and Jack bought a yacht, so I think there are reasonable grounds to suspect Jack of corruption.

9. Take particular care with allegations of criminality and allegations about what’s going on in someone’s mind

If you’re accusing someone of a crime, or of (for example) lying, you need to have particularly strong evidence. It is difficult to prove someone’s state of mind, so you are better off talking about the person’s conduct itself (what she said was false/misleading) rather than stating baldly that she lied.

10. Take advantage of privilege defences

The Defamation Act lists a set of events that are more or less safe to report on: council meetings, press conferences, public inquiries and the like.

Even if people are slagging each other during those occasions, you are insulated from defamation if you report on them in a fair and accurate manner and in good faith. Get familiar with these rules.

You should also note that you have slightly more leeway in publishing criticisms of politicians, as long as you’re engaging in genuine political discussion and acting responsibly.

11. Act ethically

In many ways, this is your best protection against a lawsuit. If you act ethically, you’re less likely to make defamatory mistakes. If you do, the people you defame are less likely to sue you.

If they do sue, you’re more likely to have a defence. Even if you don’t have a defence, the judge and jury are likely to be sympathetic to you and damages are likely to be lower. How do you act ethically? Conduct obvious checks. Don’t rely on biased sources. Don’t say more than you know. Put your criticisms to those you are criticising before you publish, and include their responses. Be measured.

Be prepared to issue a correction and apology if you get something wrong. These steps will also position you well to argue for a defence of qualified privilege. Although this defence is in flux, it may be available to publications on matters of public interest where the publisher has acted responsibly.

You should try to position yourself to take advantage of the possibility that this defence will be available.

12. Bear in mind who you’re dealing with

Some people are much more likely to sue than others. Politicians, for example. Business people. Celebrities. People whose reputation is important to their livelihood and have the resources to take action. Also, take extra care writing about police and journalists. And, of course, lawyers …

Steven Price is a Wellington barrister specialising in media law. He is the author of Media Minefield, a guide to media regulation in NZ and writes the Media Law Journal blog.

This article originally appeared in the Gazette of Law and Journalism Australia’s leading online media law publication.