In case anyone hasn’t noticed, it’s election year. Conservatives’ leader Colin Craig has started the year by threatening to pursue a defamation action against Greens’ co-leader Russel Norman for Mr Norman’s suggestion (made at Auckland’s Big Gay Out) that Mr Craig is someone who “thinks a woman’s place is in the kitchen and a gay man’s place is in the closest”.
But is this actually defamation? And how do you know if someone makes a defamatory statement about you? Defamation protects your reputation and extends not only to your general character but also to your standing in the community.
There are three requirements to establishing defamation:
- the use of a “defamatory statement”
- proof that the defamatory statement referred to you, and
- publication to a person other than yourself.
A statement is defamatory if it tends to “lower a person in the estimation of right thinking members of society generally”. To decide whether a statement is defamatory you need to consider both the ordinary meaning of the words, and whether a reasonable person would understand the meaning in a defamatory sense.
So when Mr Craig threatened satirical news website The Civilian with a defamation suit last year, he was unlikely to succeed because a reasonable person would understand that the statement was satirical and was not meant to be taken literally. However, that is not to say that humour cannot be defamatory; because it can be. The statement in question read:
“Williamson [referring to Pakuranga MP Maurice Williamson] likes to talk about big gay rainbows, but it would help if he understood what the rainbow actually means. After Noah’s flood, God painted a giant rainbow across the sky, which was a message that he would never again flood the world, unless we made him very angry. And we have”.
Context is always relevant and the above statement was referring to Pakuranga MP Maurice Williamson’s infamous “big gay rainbow” speech in relation to the Marriage (Definition of Marriage) Amendment Bill which later passed and legalised same-sex marriage.
The second and third requirements of defamation should be relatively straight forward to establish. The statement must refer to you, and must be communicated to a third party.
Once defamation is established, the issue then turns to defences which include:
- honest opinion
If a statement is true (and there is proof of truth), there is a defence to defamation. Similarly, honest opinion is a defence to defamation. To establish a defence of honest opinion a reasonable reader must be able to recognise that the statement was an opinion and not an assertion of a fact.
The defence of privilege is different to truth and honest opinion. Absolute privilege is the protection of certain occasions. This includes parliamentary privilege and legal professional privilege. Qualified privilege is slightly different in that it applies where the person making the statement has a legal, social or moral duty to pass on the statement to a person who has a corresponding interest to receive it. This tends to apply to political discussion where there is a general public interest in receiving some information and a corresponding duty to supply it.
So if you happen to be a politician (or an aspiring politician), you will generally need thicker skin than the rest of us because often there is a legitimate public interest in comments made about politicians and their views. This means that there is a higher threshold for defaming a politician.
We’ll leave you to draw conclusions about the Colin Craig v Russel Norman stoush. But if you feel like you’ve been defamed, don’t hesitate to get in contact with our dispute resolution experts.