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Defaming David?

By Steven | June 10, 2009

I’m on RNZ’s Checkpoint and TV3 this evening talking about whether all those comments posted on social networking sites that say “Bain is guilty” (and colourful variations thereon) are defamatory. I’ve also been interviewed for an NZPA story.

The answer: of course it’s defamatory to call someone a murderer. Yes, he could sue any number of people, including those posting on the websites, those who set them up, and even perhaps the ISPs. But he probably won’t.

Why not?

Mostly because he is likely to be met with a defence of truth. Ah, some might say, but didn’t he just prove that wrong – and to a jury? No. What happened in the criminal trial is that the Crown failed to persuade a jury beyond reasonable doubt that Bain was guilty of killing his family. What if that jury had been asked whether it convinced on balance of probabilities whether he killed them? We don’t know what that jury would have said (except perhaps the juror who hugged him).

What’s more, in a civil case, more evidence might be allowed in. Some of the evidence was suppressed in the Bain case, and may not be if he sues for defamation.

And in a civil case for defamation, other defences are available too. The most likely of these is Honest Opinion. That protects people expressing their views on facts truly stated or referred to. (That second part won’t be hard to establish. The facts of the Bain case are well-known.) Looking through the comments on facebook, many are clearly expressed as opinions. Others look much more like assertions of fact, and would struggle to attract an honest opinion defence, even bearing in mind the context.

The ones in most danger, I think, are those who are peddling inaccurate facts (eg misrepresenting the evidence from the case), and there seem to be plenty of them.

Still, do you think David Bain wants to spend the next two years of his life facing yet another court case revolving around the question of whether or not he killed his family?

And if he picks on some people posting on Facebook in the hopes of a quick settlement or retraction, he might find that those people get a lot of sympathy and support from others who may be prepared to help bankroll a fight. There’s appetite for one out there. Again, if he’s going to go against anyone, it will probably be those who aren’t simply saying that they believe he did it, but those who are bolstering their arguments with inaccurate assertions of fact.

Topics: Defamation, Internet issues | 2 Comments »

2 Responses to “Defaming David?”

  1. Cyclone Says:
    June 10th, 2009 at 10:10 pm

    I wonder if contributors to newspaper websites or letters to the editor might be a different proposition, along with the newspapers. There’s some wild stuff out there.

  2. Steven Says:
    June 11th, 2009 at 10:40 am

    No, they’re not. They get no special protection. Depending on how their statements are framed, there’s a fairly good chance that they’ll get an honest opinion defence.


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