New Zealand barrister Steven Price has a 12-point checklist that’s especially useful for the unwary
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.
- 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.
- 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.
- 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?
- 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. The safest thing to do is to use the exact language of the courts.
- 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.
- Use the language of opinion
There’s a defence called honest opinion 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”.
- 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.
- 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.
- 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. 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.
- 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 is 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
- 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.
Opinion by Steven Price
This article originally appeared in the Gazette of Law and Journalism Australia’s leading online media law publication.