Guest post: Do bloggers need to worry about defamation?

, posted: 7-Jun-2010 06:00

OPINION One of the benefits of blogging is the ability to swap information about good and bad products and services.  If your new HTPC setup works fantastically well, you can pass on that information to those who read your blog.  If something breaks down and the retailer or manufacturer provides hopeless repair service, you can quickly pass on that information too.

However, the more influential your blog becomes, the greater the risk that someone will be upset by your negative comments about their goods or services.  If your comments are damaging enough, they may look to legal action to require you to remove negative comments and to require you to compensate them for lost profits caused by your negative comments.  One legal action they might choose is defamation.

What is defamation?
In New Zealand, the basic rule is that you can't communicate defamatory statements about a person or company to any other person.  A statement may be defamatory if it (explicitly or implicitly):
  • may tend to lower the person in the estimation of right-thinking members of society generally.
  • is false and discredits the person.
  • it is made without justification and is calculated to injure the person's reputation.
Examples include calling someone a criminal, dishonest, a liar, a hypocrite, a coward, a cheat.  More relevantly it might be defamatory if you call someone incompetent, unskilled, unqualified or unprofessional at what they do.

To be defamation, the statement must be communicated to a third person.  Publication can be in spoken or written form.

Who is liable for defamatory statements?
Every time the statement is republished a separate act of defamation occurs.   In addition, every person involved in the publication is liable for the defamation.  If you have ever blogged negatively about someone else's goods or services, there is a good chance that what you said was defamatory.  If their sales suffer because of your statements, they may be able to sue you for defamation.  If you have quoted someone else's blog that commented negatively on someone else's goods or services, there is a good chance that what you did was defamatory.  If you allow comments, and someone comments on your blog post and that comment is defamatory you are probably also liable for any loss caused by that comment.

When can you make defamatory statements?
There are a number of defences you might be able to raise if someone accuses you of defamation.  The two most likely to be relevant to a blog post are truth and honest opinion.

If you can prove that the substance of what you said (including any innuendoes or possible inferences of what you said) is true then the defamation claim will fail.   The plaintiff is not required to prove that what you said is false.  You must prove that what you said is true.  Sometimes you may not have evidence to prove what you said even though it was true.  In that case, you could not use the defence of truth.

Another possible defence is that what you said expressed your honest opinion.  To rely on this defence you must show that what you said was presented as your opinion rather than a statement of fact.  The opinion must be your genuine opinion.  You must also show that the opinion you gave was based on facts that were stated in your blog post, and that those facts were true.  You cannot invent facts and then comment on them.  This means that in writing a negative blog post, as well as stating your negative opinion, you should be careful to accurately state the facts that you relied on to reach your negative opinion.

Blogs are an expression of freedom of speech in New Zealand, but increasingly they are also a source of income for the blogger.  The more commercialised blogging becomes, the more you need to consider writing in a way that avoids the risk of being sued.

Note:  This post gives only general information, and should only be used as a guide.  It should not be used or relied upon as a substitute for detailed advice. Special considerations apply to individual fact situations.

test Bio: Kris Morrison is an associate with Christchurch law firm Parry Field, whose work focuses on commercial/business law, property, trusts and intellectual property.

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I'm Nate Dunn, and I work for 3Bit, own Tuihana Cafe, and am a moderator here at Geekzone.

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