Email – An Increasing Risk Of Defamation?

Author:Mr Richard Johnstone
Profession:Wynn Williams & Co

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...

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