When suing for defamation, is it better to sue the individual who personally made the defamatory statements or the associated company?

Question Details: An employee of a company I previously managed has defamed me by making untrue and commercially damaging statements about a series of events that occurred while I was working there.

I want to sue for defamation but need to know whether it is best to sue the employee (the new manager) or the company.

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Answers by Lawyers

Community Law Wellington & Hutt Valley

It depends on the circumstances of how the statements were made. You will probably want to visit a lawyer to talk about this if you are serious about taking legal action. While you knew the employee through the company you were both employed at, he or she could make statements about the events that occurred at the company as an individual person, not as a representative of the company.

If, for example, the statements were made on the company's website, the company would be publishing the statements and therefore would be the defendant in your defamation suit. If the statements were made on the individual's private Facebook page, it gets trickier as the employee is likely to have been acting as a individual, private person, not as an employee.

Defamation needs to occur by publication in some manner - statements to you alone are not enough to mean they have been "published". The circumstances around the publication will determine whether an individual, private person published the statements, or an employee (and therefore the company) published them.

It's handy to remember that to bring an action for defamation it needs to be clear that the statements identify you in some way. The statements need to lead people to think that it is you they are referring to, so if they refer to a "former manager" or "former employee" in describing the series of events that occurred, it may not be sufficient to identify you specifically and for you to have been defamed.

You could also consider the Employment Relations Authority, in relation to a personal grievance, if these events related to your employment, or to you leaving the company. The ERA can also be used to mediate between employers and employees to resolve issues or disputes that relate to your employment contract. Click here for more information: dol.govt.nz. But again, if the former colleague is saying these things in a personal capacity, this may not be relevant. Also, you typically have to complain to the employer within 90 days or it is too late to raise a "personal grievance".

If you decide to bring an action for defamation in the District Court, you need to make the claim using the 'statement of claim' and 'notice of proceeding' forms from the NZ Courts website: www.justice.govt.nz. You will most likely need a lawyer's assistance for this, which can be costly. Before submitting an action in court a lawyer may be able to assist you to write a letter to the former colleague/former employer asking them to 'cease and desist' (stop making the statements or remove them from a website, etc), which may solve your problem in a cheaper and more timely manner.

Answered 24 Feb 2013. The IMPORTANT NOTICE below is part of this answer.

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