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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 | 5 Comments »

5 Responses to “I am not a bully, says Nick Smith. And if you call me one, I’ll sue you.”

  1. Ali Romanos Says:
    July 30th, 2014 at 11:51 am

    A politician using defamation law for collateral benefit!? Say it ain’t so, Mr Price!

    On an academic note, I also wondered whether defence against attack was applicable, depending on the nature/gravity of Smith’s ‘stern words’ about F & G at the meeting… maybe not, though.

  2. Steven Says:
    July 30th, 2014 at 11:53 am

    I think the privilege of defence against attack is probably available to Nick Smith in responding to the criticisms of him.

    But I would have thought that those criticised at the meeting, even if Smith’s criticisms were strident and defamatory, would be exceeding the privilege if they chose to respond in the national media when the original criticisms weren’t aired there.

  3. Ali Romanos Says:
    July 30th, 2014 at 8:38 pm

    You’re probably right. In Mitchell v Edminstin last year D-a-A QP was lost through excessive publication.

    Worth noting though that width of publication may be only one factor; the substance/gravity of the original statement — depending on what Smith said — could arguably offset the width of the reply.

    Also, I’ve seen the argument around the traps that, in certain circumstances, the original publisher should have recognised the statement would be disseminated widely..
    – again, which might counterbalance the width of publication of the F & G statements to media (also recognising that, apart from the blogger statement, those making statements were technically making only one-on-one publications to the relevant reporters).

    Finally for D-a-A, the only other thing I would think about is whether calling someone a “bully” is proportional to whatever imputations Smith published… I’m guessing so.

  4. Steven Says:
    July 31st, 2014 at 4:06 pm

    I think that anyone knowingly making a statement, on the record, to a reporter will always be taken to be speaking to the wider public. I’d certainly hate to be trying to argue the contrary proposition.

  5. Ali Romanos Says:
    July 31st, 2014 at 4:11 pm

    At least you’d be joint tortfeasors with the media publication!

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