New Zealand: Email – An Increasing Risk Of Defamation?

Defamation protects a person’s reputation against unjustifiable attack. Defamation generally involves one party making a false allegation or statement to another party which will harm someone else’s reputation.

Developments in case law in the last decade have seen the courts attempt to apply the law of defamation to new forms of media such as the internet. The internet is a tool that is readily accessible and can be used for communication and the dispersal of all manner of information via email, webpages and websites, bulletin boards and chat rooms. There is no doubt that defamation can occur by publication on the internet. New Zealand courts have held that the law of defamation extends to electronic communications via the internet¹. The following looks at the particular risks that attach to email communication.

In order for defamation to occur, an email containing the defamatory material must first be "published". Publication occurs when a person makes known or delivers the email containing the defamatory material to another person, other than the person defamed. Publication may occur merely by forwarding an email to a third party or by dictating an email to a secretary or support person who then transcribes it.

Unintended publication can also occur, ie, where an email is accidentally sent to the wrong person or to a group rather than an individual. Arguably sending a defamatory email to the person defamed, that may be accessed and read by another, could also constitute publication. Email may pass through several intermediate sites where there is the possibility that someone other than the intended recipient can access and read it. Monitoring systems at the recipient end may allow for publication, or publication may occur where a secretary intercepts the email on behalf of the intended recipient or where an open computer screen displays an email that is seen by others in the office.

Increased Level Of Risk

Arguably the chances of defamation occurring are markedly increased by the advent of email, especially work related email. Email is a less formal, more economical and faster mode of communication that now functions as a daily part of our personal and professional lives. The ease with which emails may be written and sent means that users of email may compose and send them with far less consideration than they would do so with the more formal traditional methods of communication.

Email can be easily saved, reproduced, forwarded and broadcast to others. Computer system records make it easy to establish who said what, when and to whom. Even when emails have been deleted they can usually be retrieved from a variety of locations, including hard drives and back-up tapes. It is worth noting that every publication of an email is considered a new publication. In practice this amounts to an ongoing and continued risk each time the email is published. Each new publication adds a further prospective defendant to the list of those who may be sued.

Employer Risk

Employers be warned! Liability for defamation does not just sit with the author and the publisher. Both the original publishers and those who republish can be sued for defamation. The original author may be held responsible for damages arising from subsequent publications as well; ie where republication was authorised. Anyone who has a role in the publication of defamatory material may be held liable, this includes the employer.

Employers may be held liable for the emails that their employees send in the course of their employment. In the Rodney King case an email sent by a Los Angeles police officer regarding his role in the beating surfaced.

"Oops! I haven’t beaten anyone so bad in a long time"².

Employers have also been sued by employees for defamation³.

Jurisdiction

Publishing defamatory material about someone who lives overseas is no protection from an action for defamation. The High Court of Australia has held that a defamatory statement on the internet is published, and the damage to reputation occurs where it is downloaded and read in Australia⁴. By analogy email can give rise to defamation actions wherever it is sent, received and published.

This may mean that email and website publication can generate defamation actions in any country worldwide.

Restraints do exist: the plaintiff must have a reputation where the publication is made, court orders in countries where the defendant holds few assets may have little financial return, the courts may view continued litigation in multiple court actions each in a different country as vexatious, and so on. On the upside, a plaintiff may choose the country to commence a claim for defamation, that has laws more favourable than their home country.

There is nothing to stop a foreign plaintiff from suing in this country. Overseas corporations or companies may sue in respect of defamatory material published in New Zealand. However, it will still be necessary that the plaintiff shows damage to reputation in New Zealand.

Defences

It is a defence to proceedings for defamation if the defendant alleges and proves that the plaintiff consented to the publication of the matter that is the subject of the proceedings. The traditional defences to defamation also remain: truth, honest opinion and privilege.

The Defamation Act 1992 also provides processors and distributors with the defence of "innocent dissemination". A processor is defined as someone who prints, or reproduces, or plays a role in printing or reproducing any material.

To succeed with the defence of innocent dissemination in regard to an email, the emailer or defendant must prove absence of knowledge that:

• their lack of knowledge of the material contained information alleged to be defamatory; and

• their lack of knowledge of the material was likely to contain information of a defamatory nature; and

• their lack of knowledge was not due to any negligence on his or her part.

Where an email has been sent inadvertently, the general principles surrounding "publication" will undoubtedly apply. For example some scope may be allowed where access to the computer was unauthorised or where publication occurred through no fault of the sender. The New Zealand Bill of Rights and an individual’s freedom of expression will also contribute to the development of law in this area.

Each situation will no doubt stand on its own facts. The remedies available for defamation by email are the same as for any other kind of defamation, declaration, retraction or the right of reply, or correction. It is also worth noting that the extent of an email’s circulation has already been taken into account when measuring damages⁵.

As a proactive step, the following checklist may act as a guide.

Email Checklist

• Be aware of the risk of emails falling into the wrong hands. Emails can be forwarded, reproduced and altered.

• It is worth remembering that email is the electronic form of mail. Is the tone appropriate?

• Think before you send an email. Double check what you have written. Could the email offend the recipient or a third party?

• Check that the recipient is correct before the email is sent. Don’t just hit "reply" or "reply all".

• When sending an email with the aid of an address book, understand the priority order of the address book to ensure that when "Bob" is selected, "Bob JONES" will be chosen and not "Bob SMITH".

• Take steps to ensure that sensitive emails are appropriately received; make sure that you are there to take a hard copy from the printer or ensure that others in the office cannot read your computer screen.

• Employers can be liable for their employees. Inform your employees of the implications of sending email and implement an email policy to avoid defamation occurring.

• Employers need to decide whether to monitor workplace email.

Conclusion

Email use continues to grow worldwide on both a personal and professional basis. We all need to be aware that there is a risk with the transmission of email that contains defamatory material. There is also a risk where email does not contain defamatory material. Most of us know of instances where people have been publicly identified in the chain of a forwarding list or been identified as forwarding downloaded images that may not be considered appropriate for a person in their position. Public perception can be just as damning as any litigation, and the results just as serious. An employee at London solicitors, Clifford Chance, who forwarded an email, romantic in tone, from his girlfriend who worked in the same office, lost his job. His girlfriend, through worldwide distribution of the email, within a matter of months had her photograph plastered all over the international press. Food for thought, certainly where damages are involved.