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;
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.