SOCIAL MEDIA DEFAMATION

BY MCCAW LEWIS LAWYERS

Defamation claims have been a topic of interest lately.

The increasing use of social media means that victims of defamatory statements are no longer limited to high-profile celebrity figures. In this article, Hamilton lawyers McCaw Lewis provide a brief summary of defamation law in New Zealand. A legal claim in defamation is only associated with the rich and famous, right? Wrong. Defamation is a legal term that we're likely to hear a lot more about given the ever-increasing use of the internet including social networking sites such as Facebook, Twitter, LinkedIn and various other blogging sites which we use both in business and our everyday lives.

So what is defamation? Also known as "slander" or "libel" (depending on the circumstances), defamation is when someone intentionally sets out to damage another person's (good) reputation through publication of a false statement for the purpose of harming or discrediting that person's reputation. To clarify: if a defamatory statement is made in writing or printing or some other permanent form, libel is committed; if the defamation is spoken (oral), or in some other transient form, it's slander.

So what is required in order to prove that a defamatory statement was made? The more common components of a claim in defamation may include the following: that someone has made a defamatory statement about the aggrieved party; that the statement was published; that it was false; and that it was aimed at damaging the aggrieved party's reputation.

The law in New Zealand law presumes that every person is of good repute, until the contrary is proved. It therefore falls on the author of the statement to show that the defamatory statement was true or that the statement was based on an honest opinion. If the statement published is, in fact, true or if the person making the statement can show that the facts on which their opinion is based are correct, then there is no claim in defamation.

A defamatory statement may take many forms. For example, it isn't just limited to suggestions that the person is dishonest or is a criminal. The statement could, for example, imply that the person is disloyal or incompetent or it could simply be some other derogatory remark or suggestion about that person. The basic test is whether the statement made is likely to cause ordinary people to think less of the person the statement is about.

The internet has significantly widened the scope of what now constitutes a "publication" in the context of defamation. Contrary to popular belief, a defamatory statement does not have to be published in, say, the New Zealand Herald or the Woman's Day magazine for all to see. A "publication" for the purpose of establishing a defamation claim can include basically any defamatory statement which is made in an online environment - in essence that means on the internet. This means that statements made on the internet via Facebook, Twitter and other such social media sites are considered publications in the eyes of the law.

A "host" or "creator" of, say, a Facebook page can be liable in defamation for statements posted on their page by someone unknown to the host. The reason New Zealand has adopted this approach is because of the fundamental idea that a host holds the power and can therefore control all of the content published on their page, therefore the "buck stops with them". The idea of "host responsibility" is further emphasised with features on sites such as Facebook which notify the host as soon as someone has published or displayed anything on their page, giving the host the opportunity to deal with any potentially defamatory comments.

The host may be liable for any defamatory statements made in an online environment if the statement is not removed within a reasonable amount of time. Although there has historically been a period of delay between the time a statement is made and when it might subsequently be viewed (for example via the traditional print media), the Courts now take a harder approach and assume that third parties have accessed it immediately. This assumption is increasingly more likely to be justified on sites such as Facebook, where every person who subscribes to (or "likes") a particular page can be instantly alerted about any updates or posts on the page directly to their mobile device.

So, what steps should I take if a defamatory statement is made against me?

Firstly, you could contact the person who made the defamatory statement and request that the statement be taken down immediately. You might also seek legal advice. If you have evidence that the statement is false, then you might seek a court declaration that the author is liable in defamation.

If you are successful in claiming that the statement was defamatory then you may be entitled to damages (an award of money). The award of damages is intended to compensate the victim for both the injury to reputation and the hurt to feelings. In certain circumstances, there may also be an entitlement to special or punitive damages.

Note: Readers should take appropriate legal advice before applying the information contained in this article to specific issues.

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