A Principled Approach to Defamation Claims in New Zealand: Untangling the Harm Threshold

25 Pages Posted: 8 Sep 2019 Last revised: 18 Sep 2019

See all articles by Emma Croskery

Emma Croskery

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: September 6, 2019

Abstract

The threshold requirement of reputational harm for bringing a defamation claim needs clarification. Although recent case law shows that a threshold exists, precedents conflict as to what exactly the threshold requires, and who bears the burden of proof. There is further judicial disagreement on whether the principle that defamation claims can be struck out if no real and substantial tort has been committed, the Jameel principle, applies in New Zealand. This article suggests that both the harm threshold (more accurately described as a ''tendency to cause harm'' threshold, as it does not require proof of actual harm) and the Jameel principle have a valuable place in New Zealand's defamation law and their application requires endorsement and clarification at appellate level. Further, this article highlights that the principles are conceptually distinct and their fusion is undesirable in New Zealand.

Keywords: defamation, harm threshold, Jameel, Thornton

JEL Classification: K00

Suggested Citation

Croskery, Emma, A Principled Approach to Defamation Claims in New Zealand: Untangling the Harm Threshold (September 6, 2019). (2019) 50 VUWLR 33, Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 14/2019, Available at SSRN: https://ssrn.com/abstract=3449042

Emma Croskery (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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