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Winston Peters sues for defamation

August 18, 2017

Winston Peters has sued AM Show presenter, former Black Cap opener, and general larrikin Mark Richardson for defamation. The NZ Herald summarises the offending statements:

Richardson said Peters was a “political predator” and took advantage of civil unrest to grandstand, attaching himself to an injury like a “political white blood cell”, or pus.

Now, I haven’t seen the statement of claim, so I don’t know whether this is the thrust of the claim. And I didn’t hear the programme, so I don’t know the context to the statements, which can often affect their meaning. I can’t guess whether they could be provably true.

Nevertheless this lawsuit seems… optimistic. On the face of it, it looks like these comments would probably be found to be recognisable as opinion, which gets you half-way to an honest opinion defence. It would not be too hard to identify a factual platform for the opinion – Mr Richardson would only need to set out some well-known events that might be said to be “injuries” that Mr Peters has commented upon to political advantage. That would get him most of the rest of the way to an honest opinion defence. The opinion need not be sound or reasonable, it need only be honestly held.

And even if that defence failed, this is surely political speech covered by the the Lange case. That defence is lost if Mr Richardson has failed to give such responsible consideration to the truth or falsity of his comments as a jury finds he should have given. Just how much care is required of a breakfast TV sidekick is something our courts have yet to pronounce on. It would be interesting to see them do so if the case gets that far.

Topics: Defamation | 334 Comments »

What to know what’s happening in Charlottesville?

August 18, 2017

Do yourself a favour and watch this.

Topics: General | 43 Comments »

Check this out

August 16, 2017

The Spinoff has a terrific tool that lets you see and compare the leading parties’ election policies. You can tick your favourites and then see which way you lean based on your policy choices. It is beautifully done. It almost makes you feel as if we’re living in a democracy where people choose the party with the best ideas.

Topics: General | 63 Comments »

Hammering the MC

August 11, 2017

Mike Hosking for TVNZ election debate moderator? Doesn’t look like many would vote for him, even though he’s the best person for the job according to a very well-placed source.

The problem is obvious. He is, in fact, biased. Apparently this doesn’t concern TVNZ, which seems remarkable right there. On the other hand, as Bill Ralston points out, the role is basically that of a traffic cop. I think this understates the importance of the choice and tone of the questions (which I hope are at least being overseen by someone else). It also understates the dangers of being pulled over by a traffic cop who thinks you are contemptible.

So 18,000 people on current count have signed a petition to dump Hosking as debate moderator. I don’t think Hosking should be moderator. But I haven’t signed the petition. That’s because it invokes the balance standard from the Broadcasting Act. Here it is:

Section 4(1)(d) of the Broadcasting Act 1989 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Call me a media law geek, but I have to point out that this is basically irrelevant to the question. For one thing, we can’t tell whether Hosking has breached this standard until we have seen his performance. He didn’t do a bad job last time.

For another, it applies over a period of time, and across all the coverage. Any lack of balance in one programme can be corrected by supplying it in a later one.

For another, this standard is about issues, not about people.

The standard that may be relevant is fairness. Every programme has to be fair to those involved. But again, that will turn on Hosking’s performance. You can’t complain under the Broadcasting Act in advance of a programme about the selection of a host.

But for me, there’s a more powerful reason to criticise TVNZ’s debate coverage. It screws over the Greens and NZ First, and therefore the voting public. I know their polling has dipped a bit, but a debate with them included would be much more useful to the public than one between the two major parties. The debates matter, and can have real effects. TVNZ is picking sides: it’s biased toward the two big parties. It sends the implicit message that they’re the only ones worth taking seriously. That other parties’ agendas aren’t worthy of the big stage.

I’m not suggesting this is legally challengeable. Judges won’t interfere with decisions like this unless they are utterly bone-headed. And excluded parties broadcasting standards challenges have never succeeded. TVNZ can certainly come up with a rationale to survive those sorts of challenge.

But, really. Why not have a leaders’ debate with the two big parties, then a four-party one, then one with the minor parties?

TV3, I hope you’re listening.



Topics: General | 42 Comments »

A couple of significant defamation appeals

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  not weighed in yet. But two upcoming cases may change that. (Disclaimer: I have a hand in both). In Hagaman v Little the 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.



Topics: Defamation, General | 1,306 Comments »

Protection of journalists’ sources

August 7, 2017

Here’s a useful resource for journalists trying to communicate with confidential sources without leaving electronic (or other) footprints that might unwittingly burn them.

Topics: Confidential sources | 638 Comments »

Is it possible that Todd Barclay did not commit an offence?

June 20, 2017

Newsroom has done a terrific job of trying to get to the bottom of the allegation that National MP Todd Barclay secretly recorded his former electorate agent Glenys Dickson.

Newsroom claims Barclay left a dictaphone in the Gore electorate office and recorded Dickson’s side of phone conversations. It suggests that he may have recorded conversations between electorate staff too. It suggests he used the material against her in some unspecified way. It’s not clear whether this happened only once or multiple times.

Barclay has denied all this. But it seems that not everything he said has turned out to be entirely accurate. (For instance, he’s quoted saying he would cooperate with any police investigation, but according to police, he refused to be interviewed).

It’s a crime to use a recording device to record a private conversation that you are not a party to. It sure sounds like Barclay has committed that crime. Newsroom certainly asserts it. It looks like Barclay (or someone) told Bill English about it, and Newsroom has texts where Bill English talks about this. So why did the police, after investigating, decide that it didn’t have enough evidence to prosecute?

I don’t know. But here are a few things that I suppose might be murky, or might provide a defence:

I haven’t seen the police advice. Maybe I’ve missed something. But I have to wonder about their conclusion.   Isn’t it about now that Graham McCready usually puts in an appearance?

I note, in any event, that this issue about the Crimes Act doesn’t exhaust the legal analysis here. There are also possible breaches of the Privacy Act (we might start with the general obligation to let people know when you’re collecting information, and the obligation to do so in a way that is lawful, fair and not unreasonably intrusive). There are also possible tort claims  for intrusion and breach of confidence. Then there are employment issues about duties of trust and confidence (though how that plays out given that the Parliamentary Service is the employer, I’m not sure; but I’d expect at least a duty to investigate properly).


Topics: Journalism and criminal law, Privacy Act, Privacy tort, Whistle-blowing | 389 Comments »

Open Government Partnership draft final report for New Zealand

January 10, 2017

I’ve mentioned that I’m the New Zealand researcher for the Open Government Partnership, an international organisation in which governments promise to implement action plans to increase government transparency and accountability. My draft final report is available for public comment here:

Topics: General | 167 Comments »

Margaret Harkema welcomes TV3 defamation settlement and apology

December 8, 2016

As some of you know, I act for Margaret Harkema, a dog and horse breeder in Hastings.

You may also have seen the apology broadcast by TV3 at about 7pm last night, and repeated tonight. If you missed it, you can catch it again tomorrow night, or see it on the Newshub’s website for the next week. Or you can read the text, which I’ve set out below.

The apology concerned a series of programmes broadcast about Margaret on Campbell Live in late 2011.

The apology is part of a settlement whose terms are confidential, but which involved payment of a sum of damages.

The settlement came in the wake of a Broadcasting Standards Authority decision, which contained scathing criticisms of Campbell Live’s reporting. You can read it on the BSA’s website at  It contains a detailed discussion of the background facts.

Ms Harkema says she is relieved her ordeal was over and her reputation vindicated. “Those programmes left me debilitated financially and mentally,” she said. “To this day I am shocked that a so-called reputable news organisation and its journalists could behave in such a reckless and irresponsible way.”

Ms Harkema said that she would prefer to make no further comment at this point. She asked that anyone who wanted to know anything more read the BSA’s decision, and if they had questions, contact me.

My contact details are: cellphone   022 026 0997, landline 476 8119, email

TV3’s apology

In 2011 Campbell Live broadcast a series of stories critical of Hastings horse and dog breeder Margaret Harkema and the Valley Animal Research Centre.

The Broadcasting Standards Authority found the programmes were inaccurate, unfair, “based on a pre-determined, narrow view of Ms Harkema and her practices,” were wrongfully edited to portray Ms Harkema as dishonest, and left out important information that was inconsistent with Campbell Live’s allegations. It found Campbell Live didn’t give Ms Harkema a fair chance to respond and “sensationalised or over-stated the situation by failing to distinguish guesswork from fact.”

The Broadcasting Standards Authority also condemned Campbell Live for secretly filming Ms Harkema in two highly offensive breaches of privacy.

TV3 accepts that Campbell Live’s allegations were wrong and unreservedly apologises to Ms Harkema for the damage caused to her reputation and the severe distress caused to her and her family.

Topics: General | 56 Comments »

OGP consultations underway

August 4, 2016

If you are interested in transparency issues, then there’s a brief but significant chance for you to have some effect on government. The government has to draw up its action plan for open government under the Open Government Partnership by October. That plan is supposed to include commitments that improve transparency, accountability and public participation in government decision-making. The plan is also supposed to be “co-created” with us. The co-creation part is happening now. But it has been left to the last minute.

The government has been so late on this that two community organisations – ECO and Hui E! – have been conducting their own community engagement processes to attempt to gather information and support for input into the OGP.

Now, the government has engaged consultants engage2 to seek public input into our next action plan. Details at

I encourage you to get involved.

Topics: General | 43 Comments »

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