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A couple of significant defamation appeals

By Steven | August 8, 2017

In defamation law, there are three basic defences. The first one, aptly called “truth”, protects you if you basically got it right. The second is called “honest opinion”. You can use it where you’ve clearly expressed an opinion, it’s honest, and its based on facts you have set out or which are generally well known. That way, people can tell they are getting a viewpoint and what it’s about, and can then figure out whether they agree or disagree.

The third one is known as privilege. That’s for when you have screwed up, your facts are wrong, and you haven’t expressed it as an opinion. Privilege protects you even though you’ve published a defamatory smear and hurt someone’s reputation. It protects you because the judges say that the free flow of candid speech between some people, on some occasions, is so important that we don’t want to discourage it by subjecting those involved to defamation law, even though some people are likely to be harmed by some of that speech when it’s wrong. The obvious example is debate on the floor of Parliament.

But there are other examples too. The protection isn’t quite as all-powerful as the complete immunity we give to those in Parliament. It can be lost if its not exercised in good faith. That’s known as “qualified privilege”. In 2000, our Court of Appeal ruled that it could protect the media when publishing important commentary on current, past and aspiring MPs (and perhaps others directly concerned in the functioning of representative and responsible government). That privilege could be lost if it is not used responsibly.

That’s been the law for the last 17 years. But there are unresolved questions around the fringes. What about commentary on other matters of public interest besides the conduct of politicians? Might that be protected by qualified privilege too?

And what, exactly, counts as not using the privilege responsibly? Might it differ depending on who the defendant is? For example, if responsible journalism usually requires seeking and reporting the other side, is that also a requirement for bloggers, or a lobby group, or another politician, who is sued for attacking an MP? And who has to prove it? Does the plaintiff have to show that the defendant behaved irresponsibly (as is the NZ rule in cases brought by MPs), or does the defendant have to show it has behaved responsibly (as is the rule in the UK, which already has a broad public interest defence?)

And what if the media is reporting on a couple of MPs slagging each other off? Can they just report the crossfire? Would that be responsible? Or do they have to check out each allegation before publishing it?

We have some High Court authority on some of these questions, though it’s somewhat sparse and inconsistent. The Court of Appeal and the Supreme Court have ┬ánot weighed in yet. But two upcoming cases may change that. (Disclaimer: I have a hand in both). In Hagaman v Little┬áthe Court of Appeal may have to examine the boundaries of qualified privilege when claimed by a politician criticising a businessman, and the question of whether a defendant in these circumstances has to establish they have behaved responsibly in order to get the defence, and what responsibility may mean in that context. (That’s if the case survives the preliminary question of whether the appeal can continue despite the Mr Hagaman’s death).

In Durie v Gardiner and Maori Television Service, the Court will also have to grapple with the question of whether and how qualified privilege applies outside attacks on MPs (the plaintiffs are the then co-chair of the Maori Council and a lawyer acting for the Council), and what counts as responsibility . In particular, should NZ adopt developments in the UK and Canada that say it can sometimes be responsible to publish unverified allegations, if they shed important light on a public dispute, though they might be quite wrong? If so, then in what circumstances?

So these are pretty big cases for defamation law in New Zealand. And as ever, they will force the courts to reckon with the elemental contest between speech and reputation, and to explain more about how the elusive concept of responsibility acts as an arbiter between those two primal values.

 

 

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