Tracey Walker of Simpson Grierson, author of Reputation Matters, A practical guide to managing legal risk, blogs for PR Central on legal issues relating to Reputation Management. This week; Reputation Matters – Bulletproofing the Press Release?
Knowing how defences operate in defamation law is to know the tools of your trade. The problem is that, while the rules are straightforward enough, their application is often difficult to judge.
Truth: Truth is the most complete defence. In New Zealand, the Defamation Act 1992 says you have a defence if you can either prove that the meaning complained about is true or not materially different from the truth or you can prove that the publication as a whole is in substance true or in substance not materially different from the truth. This second limb is relied on where several defamatory allegations are made in one publication and a complainant picks only some of these to complain about. The phrase ‘not materially different from the truth’ means so close to the truth that it could be said to be virtually the same thing.
The truth defence ought to boil down to a simple question of whether the sting of a publication is true. Unfortunately, Court rules about pleaded meanings and admissibility of evidence means reliance on a truth defence is anything but straightforward.
- The starting point for the Court is an assumption that the statement complained about is false. The defendant has the burden of proving truth so don’t set yourself up for a tougher battle than you need to have
- Beware of facts or circumstances which give words a special defamatory meaning – termed a legal innuendo or extended meaning
- Appreciate that what you intended to mean counts for nothing if your release can reasonably be understood to have another defamatory meaning
- Those who republish defamatory statements have to prove the truth of the underlying sting of the words rather than just that the statements were made by someone else in the first place
Honest opinion: The defence of honest opinion should be your best friend. This defence protects opinion even if unsound or unreasonable. It does not protect statements of fact. Opinion in this context is generally a deduction, inference, conclusion, criticism, remark, observation or evaluative remark incapable of objective verification. The opinion has to be based on accurate facts which are either indicated in the publication concerned, or well-known. The opinion must also be honestly held. Not every underlying fact on which the opinion is based has to be proved to be true. The test is whether the opinion is genuine having regard to those facts which are true.
Honest opinion tips
- Structure your release so that the underpinning facts are separated out from and are phrased in a different style to the comment or opinion section. This serves to distinguish the fact from the comment.
- Be sure that the underpinning facts are accurate and verify them yourself. Just because they have been reported elsewhere does not mean that it is safe to use those ‘facts’ as the basis of your opinion.
- The use of phrase flags such as ‘I believe’ can help shore up your defence but aren’t decisive.
- The opinion might be ‘stinging’ or critical, but keep the facts as neutral as possible.
- It is safer to criticize actions and decisions rather than the motives of people.
- Context is crucial as always. If your press release is in an area in which views are hotly debated and public interest runs high, the sting of your press release will more likely be understood as opinion.
© Tracey Walker (Twitter:@traceywalkerj). Tracey is the author of Reputation Matters: A Practical Legal Guide to Managing Reputation Risk (CCH, 2012). This blog is a general summary for guidance and does not constitute legal advice. I recommend that you get advice in relation to any particular press release if you have concerns about defamation risk.
- Download the brochure on Reputation Matters.
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Tracey Walker is a speaker at the Senior Practitioners Forum in Wellington on 5 October 2012, more information on the Forum here.