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Editorials undefended against defamation suits?

By Steven | October 8, 2013

Here’s a surprising thing about the Defamation Act 1992. It removes the right for editorials to argue honest opinion (what used to be called “fair comment”).

You ought to be sceptical about that claim. It sounds absurd. Editorials are the very epitome of fair comment/honest opinion. They are written on the assumption that the defence applies. Otherwise, editorials that express critical views of people (and that’s 95% of editorials) may be exposed to defamation lawsuits.

So how do I reach the conclusion that this defence isn’t available? The Defamation Act reformed the law of honest opinion (for one thing, it replaced the name “fair comment”). Here’s the main bit, section 10:

In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,—

(a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that—

(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and

(ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion:

(b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that—

(i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and

(ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion.

Okay. Boring. What this does is create a tiered system of honest opinion defences. If you are sued for something you wrote yourself, you need to show that it’s your “genuine opinion.”

If you’re publishing something written by your employee or agent, you need to show that you believe it’s his or her genuine opinion.

If you’re publishing something written by someone else (a letter to the editor, for example, or a comment on one of your blog posts, or a quote from a source), you have to show that you have no reason to believe that it’s not his or her genuine opinion.

So far, so good. But notice the fine print. For the last two categories, you also have to show that it doesn’t purport to be your opinion. Ordinarily, that will be easy. The op-ed contributor has a byline. The letter to editor is signed. The quote is attributed to a source. No problems. A newspaper gets sued, and it will readily be able to show it had no reason to doubt the genuineness of those people, and that no-one can be confused about whose opinion is being expressed.

Now think about editorials. They are written by employees of the newspaper. (They are often written at the direction of an editorial board). Sometimes, they’ll be written by contractors. Are you starting to see where I’m going here?

Editorials purport to be the opinion of the paper. That’s the whole point. They are unsigned. They often run under the masthead. They are exactly the paper’s opinion.

Now look again at the requirements for an honest opinion defence. Assume a newspaper is sued for defamation over an editorial. Assume one of the newspaper’s employees wrote that editorial. The paper may be able to prove that it believed the editorial was the genuine opinion of the author. (Actually, right there is a problem too: if a staff editorial writer is instructed by the paper’s editorial board to take a particular line, can the paper say it believed the piece to be the writer’s genuine opinion? What if it’s clear that the author actually disagrees with the party line?)

But let’s say that the paper can show it’s the genuine opinion of the employee who wrote the editorial. There’s a bigger problem. The paper then has to show that the editorial didn’t purport to be its opinion. But it can’t do that. Editorials do purport to be the newspaper’s opinion.

The Defamation Act says that the defence of honest opinon “shall fail” unless these elements can be proved. And I don’t think they can.

Now, I accept that this is a weird outcome. I accept that courts will strain themselves to find a way to allow a newspaper to have a defence of honest opinion for its editorials.

The best I can come up with is that the paper will argue that it falls into the first category above. That is: the paper is the author of the editorial. It will put its editor on the stand, or the head of the editorial board, and that person will speak for the paper and say “this is the paper’s genuine opinion.”

Like I say, that’s the best I can do. But it’s pretty problematic. Because it involves treating the paper as the “author”, and this interpretation is directly contradicted in the very next subsection of the Defamation Act. That’s the one that distinguishes between defendants who are the author, and defendants that hire someone else to be the author. And that seems to be precisely what’s happening with the editorial.

As far as I know, my theory is entirely untested. No one has raised it in the courts. But if someone were to try, the result might give a bunch of newspapers a fright.

Topics: Defamation | 48 Comments »

48 Responses to “Editorials undefended against defamation suits?”

  1. Andrew Easterbrook Says:
    October 9th, 2013 at 10:23 am

    I like this. I shall make a note and use it one day.

  2. Julian Miles Says:
    October 10th, 2013 at 5:48 pm

    Yr analysis is unimpeachable.But no court wd adopt it.
    Editorials are quintessentially opinions but opinions of the paper.
    I think a court wd adopt yr suggestion that s 10(2) wd not apply as the editorial is effectively written or authorized by the defendant proprietor.
    While the section has it’s linguistic imperfections it is quite clear what it’s intended to cover….letters and opinion pieces published by the paper that clearly reflect the authors views rather than the paper.
    Judges strive to construe statutes rationally if its at all possible and I think it is possible in this case

  3. Graeme Edgeler Says:
    October 14th, 2013 at 9:45 am

    If a newspaper publishes a defamatory editorial, and someone sues on it, whom do they name as defendant?

    If it’s the DominionPost or the Press, they name Fairfax. If it’s the New Zealand Herald, they name APN. Fairfax and APN will be capable of proving that an opinion in an editorial in one of their papers does not purport to be their opinion.

  4. Graeme Edgeler Says:
    October 14th, 2013 at 10:03 am

    And if someone did sue a newspaper directly, why do believe that the newspaper would not be considered to be the author of the editorial?

  5. Steven Says:
    October 14th, 2013 at 11:45 am

    Graeme comment 4: I thought I had explained this in my post. It is hard for a publisher to argue that it is the “author” when the section shows that Parliament has in mind a distinction between the author as publisher and a situation where the author is the employee of the publisher.

    Graeme comment 3: this seems a much better point. But it doesn’t seem to apply to independent papers. And I’m not entirely sure that opinions published by a company under one of its mastheads does not purport to be that company’s opinion. Finally, it wouldn’t stop you suing the editor (in situations where an employee has written the editorial, the same problem is there).

  6. Graeme Edgeler Says:
    October 14th, 2013 at 12:32 pm

    i certainly thought 3 seemed my better point, 4 was more an afterthought, after reading Julian Miles’s comment. I think it’s possible that that is the means by which a court would avoid this were it to ever come up.

    Does your argument apply to other material not written by people who than appear to be the author: a letter drafted by a staffer, which is then signed by a Minister of the Crown, for example? I would consider the Minister to be the author, but do you disagree?

    As to 3, I like to think that editorial independence means something, such that the views of the editorial staff of a paper are not presumed to be sheeted home to their owners, even in respect of independent papers. But this certainly seems like it would be the case for a larger stable of publications – editorials across Fairfax publications don’t always agree with each other, let alone with their owners!

    In respect of suing the editor instead, I guess I fall back on 4. The draft may have been prepared by someone else, but it’s signed off by the editor, who thereby becomes an author (or a co-author).

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