Saying It How It Is: Truth and Honest Opinion vs Defamation

Freedom of speech is an important concept in a democracy. While this freedom needs to be safeguarded, we must also protect ourselves from being sued.

There are a lot of quotes from famous people throughout history on the topic of freedom and speech. One of my favorites is Oscar Wilde’s (paraphrasing Voltaire):

“I may not agree with you, but I will defend to the death your right to make an ass of yourself.”

But all freedoms have limits, and the limit on your freedom of speech is aptly summed up in this quote from the writer Jim C Hines:

“Freedom of speech does not protect you from the consequences of saying stupid shit.”

One of the consequences of saying stupid shit is that you may get sued for defamation. Part of my job as a lawyer working in the film and TV industry is reviewing films and TV shows for defamatory statements (particularly where error and omissions insurance is required).

But even if your job doesn’t involve making decisions about film and TV content, it’s still important to understand the basic dos and don’ts when it comes to defamation. Reputations in our industry are important, and given the stresses that many people work under (including the stress of finding work) the risk of making a defamatory remark is reasonably high. So I thought a defamation primer would be in order. Here we go then. A statement is defamatory if:

• It is about an identifiable person.
• It is untrue.
• It would tend to injure the person’s reputation.
• It is published.

Publication just means that it is communicated to another person. Therefore defamation is essentially saying something false about a person that is damaging to their reputation.

It’s not just the literal meaning of the words that have to be considered. For example, commenting on Judith Collins’ statement that her dinner with Oravida executives in China was just a social occasion, I might say she was a liar. Now, calling Judith Collins a liar is literally true. As it would be if I said that about anyone, we all learn to lie at about the age of three, and we do it compulsively for the rest of our lives. It’s not possible to be human and not lie. We lie about everything from telling your toddler son that he can’t use the iPod because “the batteries are flat” to telling the cop that you only had “three wines with dinner”. (Ricky Gervais’ film The Invention of Lying illustrates very nicely how much our society relies on people lying to function).

But the implication of my statement about Judith Collins goes much further than simply being a sociological observation on her essential human characteristics. It carries the implication that she is lying about something big that affects us as the public, an implication which, if true, would most definitely reflect badly on her reputation. As it happens in that case the implication is also true, so no problem. As ‘truth’ is one of the key defenses to a charge of defamation. If you can establish that the statement you published (including any obvious implied meanings) is in fact true, then you have an absolute defense to the claim.

In fact, it’s not even necessary to go as far as proving what you said was the truth, as there is another defense to defamation called “honest opinion”.

Let’s take an example from our own industry. Geoff Murphy was reported in the papers recently as saying that Peter Jackson “stole” the NZ film industry. Now clearly, a film industry is not something you can steal in the normal sense of the word, but reading The New Zealand Herald article further in which he was quoted, what he is actually saying is that Peter Jackson’s success in Hollywood has had a detrimental effect on the NZ film industry as the success of films like The Lord of the Rings trilogy (which have no connection with NZ cultural development) have marginalized NZ cinema.

Now I am sure Peter Jackson welcomes open and honest debate on the NZ film industry and would have thick enough skin to be able to take criticism, so the issue of defamation would not even arise in the first place in this case. But just using this as a theoretical example, this is a good example of the type of opinion that is protected from claims of defamation. There are three main legs to a defense of honest opinion. First is that the statement is an opinion (rather than a statement of fact), second is that it is honestly held, and third that the opinion is based on true facts.

Looking at these three elements, I don’t think there is much doubt that the reported comments are opinion, and anyone who knows Geoff Murphy (which admittedly I don’t, but I feel like I do) knows that he would not be the type of man to waste time expressing opinions that he doesn’t genuinely hold. So then all we have to do is look at whether his opinion is based on true facts. Looking at the facts then – Peter Jackson has been phenomenally successful to the point of dominating the conversation about cinema in NZ (both within NZ and overseas), yet has not for a very long time made a NZ film (in the sense of a film that explores a NZ story or an aspect of our cultural development). As a rule, the NZ films that are being made struggle commercially and it is true to say the NZ film industry has not made the type of progress that some think is possible. In Geoff Murphy’s opinion, there is possibly a link between these facts. Whether he is right or wrong is not the question. The question is whether he is entitled to have an opinion about it and to express that opinion publicly. Others may vehemently disagree with him, but that is fine. The important thing is the ability to freely express opinions.

In some cases, a defamation threat can be used as a weapon to try and shut down public discussion. However, freedom of speech demands that it is used only as a shield, and the defense of honest opinion is an important part of maintaining that appropriate balance.