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I am not a bully, says Nick Smith. And if you call me one, I’ll sue you.

By Steven | July 28, 2014

Conservation Minister Nick Smith is being accused of political interference for trying to discourage NZ Fish and Game from publicly advocating for cleaner lakes and rivers. Now he’s threatening to sue those who made the claim.

Now, I don’t know what happened at the meeting, and it’s clear there are different recollections of exactly what went on. But on the basis of what’s been reported, I very much doubt Nick Smith will sue.

Why not? There are three main defences to a defamation action. The first is truth. Radio NZ is reporting that there are four people who were at the meeting who confirm the allegations against Smith. The defendants wouldn’t have to prove every detail is right, just that the sting of the allegations is true or not materially different from the truth. Smith has released DOC’s officials notes from the meeting (rather putting that official in a difficult position, I would have said. There are obvious questions to ask of that person about whether s/he remembers anything else relating to these allegations – things that may not have made it into the notes). Anyway, those notes seem fairly brief, and it’s being reported that the meeting was fairly lengthy. It’s a brave person who sues when truth is an issue and four people disagree with his version.

A second defence is honest opinion. Much of the language of Smith’s critics is couched in the language of opinion. There has to be a truthful factual platform for that opinion, but that doesn’t require proof of all the underlying facts about what was said at the meeting.

Finally, there’s qualified privilege (the Lange defence). That applies to criticisms of MPs. It must apply particularly strongly around elections. It can be defeated if Smith can show that the criticisms were made irresponsibly or recklessly. What might amount to recklessness or irresponsibility is relatively clear when the defendant is the media (have they sought and included the other side of the story, for example), but it’s hard to see the court requiring critics in circumstances like this to adhere to the same standards.

Put all that together, and I wouldn’t be recommending a lawsuit. But I suppose there might be some advantage in bandying around the prospect of a lawsuit to discourage further criticism…

Topics: Defamation | 17,794 Comments »