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Friday, 12 June 2009

Defamation of the Acquitted - Some Advice

Due to the presumption of innocence we are all supposed to accord an accused following a not guilty verdict, please do take care in suggesting and stating any disagreement you might have in regard to a court's decision. Defamation is a real possibility in such instances and the defamed can sue the blog/site owner, in some instances the ISP, as well as the comment poster.

Be aware that you can defame someone when you suggest or allude to your meaning as the court can imply both identity and meaning; if you have written it cryptically so people will get it without you saying it directly what makes you think that the court won't?

Stating it is your opinion is not a defence unless you can show your opinion is reasonably held and even then, unless you have the money to prove your defence in court it is wiser to not go there and to respect the presumption of innocence - you were not in that court room afterall. Don't rely on a plaintiff's broke status, that they won't be able to afford to drag you into court; lawyers are far more willing to do pro-bono work when their client is legally famous.

MandM do not moderate comments and allow anonymous contributors; however, as with spam, any comments posted on this blog that are defamatory will be deleted; legal defences for permitting publication of a defamatory viewpoint are much harder to succeed with. I suggest other bloggers watch their comments for this issue and be aware that even if you promptly delete it, you can still be sued even though you didn't write it.

From all of the above the so called "chilling effect" of defamation can be seen. Effectively what I am saying is that if you criticise the court's finding or you claim the court got it wrong then effectively you are saying that the accused that the court ruled 'not guilty' is in fact guilty and you step into the realm of defamation law. Whilst I support the concept of reputation as property that one can defend at law, as reputation can directly affect the pursuit of life, liberty and happiness, I also support freedom of expression and the principle of openness and further, I strongly oppose a system that effectively renders the courts as infallible or unquestionable.

Even though defences to defamation do exist that can, in some instances, support questioning of court and jury decisions, such as:
  • honest opinion - must be reasonably held,
  • truth - because defamation is a civil action in New Zealand, this will be held to the balance of probabilities, not reasonable doubt;
These defences are expensive to mount, you could easily run up a legal bill of $20,000 plus and there is no guarantee you will succeed, most of us don't have a spare 20k to throw at the things we say online so when confronted with the risk of having to we err on the side of caution and cede too much of our freedom of expression and our right to open trials; hence the chilling effect of defamation law.

However, rather than do away with defamation law or deem reputation to not be a form of property - I think requiring people to think about not harming others before they open their mouths is not that unreasonable a limitation on freedom of expression - the problem could be solved by a revamp of how the law works. Either publicly fund access to justice so you can defend yourself when accused and protect your property when it is attacked - judges could keep a check on frivolous actions or make defamation a criminal offence, which would achieve the same thing.


  1. OK what I get from this is we are allowed to argue that a person did not commit a crime after a Court has found him guilty, but we are not allowed to argue that a person did commit a crime after a Court has found him not guilty. After a Court has found someone to be guilty his conviction can be reconsidered and even overturned, however if a Court finds someone to be not guilty, that is the end of the matter.

    One consequence of the the latest verdict in the Bain saga is that Robin Bain has been found guilty, and no one seems willing to defend him.

  2. You have definitely hit the problem on the head. Of course the crown can appeal the decision as this was decided by the High Court it could, theoretically, go two more rounds to the Supreme Court meaning that speculation based on new evidence and questions of law should be ok but the crown almost never, in practice, appeals criminal cases.

    I don't think anyone likes the chilling effect of defamation on free speech and I don't think that this is what lawmakers or judges had in mind. Failing to accord someone the presumption of innocence is not something that is supposed to be backed up by law. For this reason I think well supported and thought out arguments questioning whether the court 'got it wrong' are probably ok in such cases, they show evidence of being reasonably held and generally one would be doesn't go to court lightly or unless one is sure they will win. There is also the floodgates issue, how realistic is it that every single person who has said "the accused is really guilty" following a well publicised trial can feasibly be sued.

    I too am uncomfortable with the position everyone assumes Robin Bain is left in. Of course you cannot defame the dead but there is something disturbing about a situation where you have had two cases with different outcomes, suppressed evidence, etc and the defence and prosecution line that ran D or R, if not one, then the other and the other cannot defend himself.

    Of course the fact that David Bain was found not guilty does not mean it has been proved beyond reasonable doubt that Robin committed the murders but it does seem like that is the way we must construe it. In fact we owe both David and Robin the presumption of innocence. Neither has been proved guilty to the requisite standard so we must assume neither did it. However, I doubt many people can or will make that assumption.

    Recent blog post: Coming Soon


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