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Talley’s defamation decision looks strange to me
By Steven | December 18, 2025
I read a lot of judgments, and particularly ones about media law. I have never felt more disconcerted than when I read this one.
As you probably know, Talley’s sued TVNZ for defamation over a series of stories (and related online articles) from 2021. They mostly alleged health and safety violations. TVNZ defended it, and the trial was held in September and October this year. (Confession: I was overseas at the time and didn’t follow it closely).
The trial was before a judge alone, Justice Jagose. His decision is out. TVNZ won.
I’m not saying that was the wrong result. I suspect it was right, though it’s hard to tell. But the judge’s reasoning has left my head spinning.
What I expected
Let me tell you what I expected this judgment to be about. I thought the key issues would be whether TVNZ’s allegations were true, and if not, whether TVNZ had a defence known as “responsible communication in the public interest”. I’m especially interested in the responsible communication defence, because I was involved in the case that created it. The defence is pretty much what it says on the tin. You have a defence to defamation if you can prove you were publishing about some matter of public interest if you can show that your publication was responsibly prepared, even if it turns out to be wrong and defamatory. Obviously, a lot turns on what counts as “responsible” preparation, and there’s limited case law on that.
I am a proud defamation nerd, so I was eager to see whether the judge might enrich our understanding of what sort of conduct does, and doesn’t, count as responsible.
But the decision was hardly about truth or responsible communication at all. Instead, the judge held that almost all TVNZ’s publications didn’t have a defamatory meaning (or at least, didn’t have the meanings that Talley’s said they had).
I didn’t see the broadcasts. But Justice Jargose describes them in detail.
The first programme
I won’t go through all the broadcasts. Let’s just look at the first one. Here’s a summary of that story, incomplete, but fairly detailed. TVNZ led its news broadcast with an “exclusive investigation” into “health and safety concerns” at Talley’s, based on information from a “whistleblower”. The whistleblower said Talley’s Ashburton factory, where a woman recently had her hand crushed “is another accident waiting to happen.” The whistleblower supplied images that “don’t look good”. They show a “different side” to the factory, “pulling back the curtain” compared with the “spotless image” presented by Talley’s.
The whistleblower says (with voice and body masked – “for his protection”, TVNZ says) “I’m sorry but these guys are lying to them. They’re lying to their customers.” TVNZ reports that Talley’s has had several accidents across its operations. The whistleblower says “To me, what they are doing, they don’t even care because these people are easily replaceable.”
TVNZ broadcasts the images of filthy machines, a contracter standing, apparently dangerously, atop a loaded truck, and a “machine with exposed pinch points where people can be trapped”.
The whistleblower says, “If your hand is trapped in the machine, your fingers or whatever, the machine keeps running.”
TVNZ says Talley’s claims the photos are taken out of context, and that Talley’s addresses safety issues whenever they arise. TVNZ shows some photos of clean safe equipment supplied by Talley’s.
The whistleblower says, “What I’m saying has not been there for one or two days, it’s been there for months.”
Talley’s says hazards like the pinch points have been put under guard since an audit. Its CEO says it’s a safe site.
TVNZ’s reporter Thomas Mead says, speaking over an image of a redacted email, “Except that just three months ago a woman had her hand stuck in a machine on the Ashburton corn line. A leaked email showing Talley’s had to call emergency services to get her out then told staff to keep quiet, writing “do not share any information, discuss or pass comment about this incident outside the business.”
(Mead to the CEO) “Was she safe?” CEO: “Well, if she’d followed the proper procedures, she would be.”
TVNZ reports that WorkSafe investigated but did not take any action, then says “The two sides could not be more opposed, Talley’s refuting any suggestion they put profit over their staff.”
The whistleblower: “Everyone can see it. Everyone, managers, supervisors, everyone is there. They know it’s there. They just walk away.”
CEO: “I feel that we are definitely doing everything we can to try and make sure that people do go home safely on a daily basis.”
TVNZ says not everyone agrees. Mead then reports that Talley’s reneged on an initial invitation to let TVNZ film inside the factory, and then tried to persuade TVNZ not to run the story with a mixture of legal threats and arguments that the story wasn’t of public importance. Mead said the story was in the public interest and that people could make up their own minds.
The meaning
The first question for the court is: what meaning would ordinary reasonable viewers take from this?
Here’s what Talley’s said was the meaning or “sting” (that is, the defamatory barb) of the broadcast:
(a) Talley’s requires its staff at Ashburton to use unsafe machinery without adequate guarding at exposed pitch points.
(b) It disregards safety concerns at Ashburton.
(c) Safety standards at Ashburton are at a low level endangering its employees.
(d) Talley’s lies to its customers about worker safety at Ashburton.
The judge said none of those meanings were there.
The judge’s reasoning
Here’s the relevant passage:
From the perspective of that ordinary reasonable viewer, the broad impression I carried away in my head was the 1 July 2021 meant, on the basis of the unidentified source’s photographs and the worker’s injury, TVNZ questioned the adequacy of food safety and health and safety measures taken at Talley’s Ashburton site, to which Talley’s responded [that the problems] are or have been (and, in respect of the injured worker, WorkSafe appeared satisfied was) addressed in the particular circumstances, as illustrated by Talley’s provision of alternative photographs, but would prefer not to be the subject of television broadcast news. Except for his reply to Talley’s photographs, I was puzzled by the relatively non-specific nature of the rest of the statements attributed to the unidentified source, except to think- prompted by apprehension of other industrial accidents in Talley’s group operations- he comprehended he had sustainable food safety and health and safety concerns arising from Talley’s Ashburton site’s operation, not shared by anyone else working there. TVNZ invited viewers to make up their own minds. Given that invitation – despite Mr Dallow’s introductory remarks that the whistleblower’s images “didn’t look good” as which Mr Meads would “ask the hard questions” of and “pull back the curtain” on Talley’s Ashburton operation, including by affording the whistleblower anonymity “for his protection” – I carried away in my head the broad impression TVNZ was not urging any particular conclusion.
I disagree
I can’t follow this reasoning. I think an ordinary viewer will be left with the clear impression that TVNZ is urging the conclusion that there are safety problems at Ashburton. I mean, otherwise: why run the story?
TVNZ is pushing this conclusion in all sorts of ways. The “exclusive investigation” (there’s something important to hear). The fact they’re leading the news with it. TVNZ’s introduction emphasising “another accident waiting to happen” and images that “don’t look good”. The phrase “whistleblower” (a source who is revealing secrets). The need to “protect” the whistleblower (from a vindictive corporate employer who doesn’t want the truth revealed). The secret photos, which “show a different side”, contrasted with the way Talley’s “presents” a “spotless image”). The whistleblower’s allegations: Talley’s lies, it doesn’t care about safety because people are easily replaceable, machines keep running if hands are trapped, it’s been there for months, everyone can see it, they just walk away. The source “shows” and “tells”; Talley’s “claims” and is challenged. Talley’s email to staff to shut them up. Talley’s guilty-looking last-minute reversal of its invitation to let TVNZ film in the factory. Its threats and arguments to try to bury the story.
Yes, the whistleblower’s allegations are a bit vague. But that just invites viewers to form a negative impression, led by the context (the photos, the allegation of harmful safety practices). The lack of specificity doesn’t seem puzzling to me because of that context. I don’t understand why the judge would think that the whistleblower had concerns that no-one else at the workplace shared. The whistleblower says “everyone knows”.
Yes, TVNZ showed some photos from Talley’s. But I think viewers would readily figure that it would be easy for Talley’s to quickly clean and fix some machines and take some snaps – I’m not saying that’s happened, just that ordinary viewers aren’t going to be convinced by them.
As for TVNZ’s mention of viewer’s making up their own minds, the judge’s reasoning put me in mind of the Fox News slogan: “We report, you decide”. Just saying it does not mean you don’t have an angle.
It’s as if the judge thinks the story went something like this:
We begin tonight with a story about Talley’s, one of the country’s biggest food producers. We found one guy who showed us some photos of dirty machines and made some vague allegations about unsafe practices, but Talley’s showed us photos of clean and safe machines and said it always fixed any safety problems when they came up. It’s a bit of a wash.
I want to be clear about what I’m saying here. I don’t think this means TVNZ’s story was bad. TVNZ seems have gone to quite some effort to provide balance and to ensure it was accurate and to make the story informative and engaging. But it was trying to raise the alarm about Talley’s. I think even TVNZ would be surprised at the meaning the judge came up with. I’m guessing it’s not the way, say, Thomas Mead would have described it at the pub afterwards. Or anyone else who saw it.
I’m also not saying that TVNZ’s allegation were unfounded. I’m saying that, under the law as I understand it, the story contained defamatory meanings about Talley’s. So I think TVNZ needed to provide evidence to the court to back them up. In fact, it seems that both parties provided oodles of evidence on that question. But the judge didn’t even need to look at it because he found that there was no defamatory meaning. I think that’s a shame. As I said at the beginning, I thought truth would be a key issue. I’d be willing to bet all the lawyers involved expected that too.
I won’t bore you by going into all the other articles and broadcasts, but the judge found that all but one of them did not contain defamatory meanings. And I could repeat this exercise with all of them. Ten other broadcasts and articles, all seriously critical of Talley’s, some based on whistleblowers, and the judge bowls them out one after another by finding they don’t have the pleaded defamatory meanings, without having to examine the evidence about whether they are true or responsibly prepared.
A rationale
If I try hard, I can – just barely – come up with something of a justification for the judge’s conclusions. It goes like this. The judge isn’t saying that TVNZ’s broadcasts didn’t have any defamatory meaning. Just that it didn’t have the defamatory meanings pleaded by Talley’s.
Now, my impression is that the meanings pleaded were not excessive or exaggerated. I thought that generally they fairly captured what was conveyed by the broadcasts. And that’s all you need.
But it is possible to argue that they were overegged, and it’s possible that’s what the judge had in mind. In other words, if Talley’s had said the broadcast meant “there is reasonable cause to believe that Talley’s disregards safety concerns at its Ashburton factory”, the judge might have upheld that meaning.
This is known in the business as a “tier 2” meaning. It is still defamatory. (You wouldn’t want a newspaper to report that there was reasonable cause to believe you’d committed murder, for example.) But it’s less defamatory. (It’s not as bad as the newspaper reporting you’d committed murder – a
“tier 1 meaning”). And tier 2 meanings are easier to defend. (The newspaper wouldn’t need to prove that you committed murder, just that there is some evidence that plausibly points to it – eg, someone matching your description was seen running from the murder scene). That’s why plaintiffs usually prefer tier 1 meanings. They are harder to defend.
On this analysis, Talley’s lawyers pleaded the wrong tier. There was enough in the broadcast supporting Talley’s that TVNZ could not be said to be making an outright allegation; it was instead just alleging there was evidence of safety violations.
This is getting into the weeds of defamation. I have to say, I’m generally fairly sympathetic to this sort of analysis. I think plaintiffs often plead meanings that are more absolute than the actual wording of the publication. But I admit that this practice (of pleading tier 1 meanings rather than tier 2 ones) is extremely common. It is particularly common in cases like this one, where there are many indications in the publication that push toward a particular conclusion. What’s more, judges routinely accept slightly overegged meanings. That is, when a publication contains a bit of balance, they are still prepared to find tier 1 meanings. And generally, I think that’s quite proper.
I think it would have been quite proper here.
One meaning upheld
The judge did accept that one broadcast (and article) contained a defamatory meaning. He found TVNZ alleged that there were not enough emergency stop buttons on Talley’s machines, and Talley’s knew about this but didn’t fix it.
Truth
TVNZ pleaded truth. But the judge accepted Talley’s evidence that it had taken steps to address emergency stop buttons.
No more than minor harm
That left three other defences for TVNZ. One was that the broadcast had done “no more than minor harm” to Talley’s reputation. For reasons I don’t understand (but may have had to do with how the parties argued the case) the judge only focused on the harm to Talley’s reputation among current and prospective employees. TVNZ said Talley’s already had a bad reputation. It offered evidence of earlier incidents, including court cases. But the judge said TVNZ couldn’t show that those incidents were known to employees. So there was more than minor harm.
Likely pecuniary loss
But Talley’s also had to prove that it was likely to have lost money because of the defamatory broadcast. This is slightly different to the “more than minor harm” threshold. It’s a rule that only applies to plaintiffs that are corporations. Essentially, if you’re a natural person and you’re defamed, the law presumes you’ve suffered harm to your reputation, but if you’re a company, you have to prove that you’ve suffered financial loss.
Talley’s listed a whole lot of ways it claimed to have lost money: salaries of staff time spent responding to allegations and liaising with customers, etc; reduced staff morale and productivity; costs of expert and PR advice, investigations and audits; lost sales; damage to goodwill; increased recruitment costs; and more.
I think this is a vexed area of the law and I was interested to see what the judge would do with it. It’s vexed because there’s a case that says money spent by a company on damage control, including staff time, counts as financial loss. I think that’s a problem because every single firm that claims to have been defamed will be able to prove that it’s had to spend some money in the form of staff time dealing with the fallout. That reasoning eviscerates this special hurdle for corporations, which I think is designed to make them prove that the defamation has caused them to lose customers or contracts etc.
I’d be loathe to think that Talley’s could point to staff time spent dealing with PR, or even consultants brought in to deal with safety issues; or productivity losses due to staff morale. But even on my sceptical view of things, Talley’s claim to have lost sales, for example, is certainly about financial loss, though whether its evidence of sales loss and what’s caused it is sufficient is another question.
Talley’s provided a lot of evidence of financial loss, though it seems like it was all pretty general. Lots of staff time. PR advice. Difficulties in recruitment. (There’s nothing in the judge’s discussion about lost sales or contracts or goodwill).
The judge says he has “serious difficulties about the legitimacy as “pecuniary loss” of the marginal additional expenses claimed in terms of executive and management and some consultant time, when such expense is in any event to direct and manage Talley’s operation irrespective of measurement in terms of productivity and profitability”. And he doubts that money spent on safety can count. That strikes me as entirely sensible.
Then he says that Talley’s can’t point to any losses relating to recruitment, or any other losses, that can be specifically attributed to the one broadcast he’s found to be defamatory. There were broadcasts about Talley’s over three nights in a row, he says. How do you separate out the financial loss from the one that’s defamatory from the other two that might be causing harm because they were critical of Talley’s but were not defamatory?
On the one hand – fair point. On the other hand – how could a plaintiff ever do this?
The judge found lots of problems with the financial-loss claim, especially relating to recruitment. It was a tough employment market anyway. Covid had struck. Talley’s didn’t have records of its recruitment costs before and after the broadcast.
Anyway, the upshot is that, despite all the convincing evidence of money that Talley’s spent as a result of the broadcasts, the judge said it had not suffered provable financial loss in relation to the one defamatory broadcast. And that’s the end of the case.
I’m left wondering about the allegation that Talley’s lost sales. That feels like a good measure of whether its reputation had been harmed. What was that evidence? I guess it would still be very difficult to attribute to one particular broadcast though.
Responsible communication in the public interest
This was TVNZ’s final defence. The judge didn’t have to decide this. As I’ve said, he found only one broadcast defamatory and held that it had not been shown to cause financial loss. But he included a section on the responsible communication defence, and good on him for that.
But boy, is it strange.
There are two elements to a public interest defence. First, the story must be in the public interest. The one that the judge found was defamatory plainly was (the alleged lack of emergency stops at the Ashburton factory, remember), and the judge said so.
The big question is whether the story was responsibly prepared. As the judge noted early in the judgment, the Court of Appeal in Durie v Gardiner says this calls for an assessment of various factors, including:
(a) The seriousness of the allegation — the more serious the allegation, the
greater the degree of diligence to verify it.
(b) The degree of public importance.
(c) The urgency of the matter — did the public’s need to know require the
defendant to publish when it did, taking into account that news is often
a perishable commodity.
(d) The reliability of any source.
(e) Whether comment was sought from the plaintiff and accurately
reported — this was described in Torstar as a core factor because it
speaks to the essential sense of fairness the defence is intended to
promote. In most cases it is inherently unfair to publish defamatory
allegations of fact without giving the target an opportunity to respond.
Failure to do so also heightens the risk of inaccuracy. The target may
well be able to offer relevant information beyond bare denial.57
(f) The tone of the publication.
(g) The inclusion of defamatory statements which were not necessary to
communicate on the matter of public interest.The judge had earlier noted that TVNZ had contacted Talley’s about the story, seeking a response to a set of criticisms that were in the broadcast – the lack of stop buttons and training about them, the failure to fix them after complaints. Then when Talley’s responded, TVNZ included a pretty fair summary of the response in the broadcast. That goes to para (e) above. It’s right at the heart of this defence. If you are a media organisation and don’t put your criticisms to someone and include their response, it’s going to be hard to say you’ve behaved responsibly. On the other hand, if you do, you’ve gone a very long way to ensuring this defence will apply.
So TVNZ looks to have a good argument that it has behaved responsibly. It can also say it has relied on two apparently well-placed sources, which goes to (d). It no doubt argued that the story was publicly important, its tone was measured, and it didn’t include extraneous information – factors (b), (f) and (g).
But the judge doesn’t directly consider any of the factors from Durie v Gardiner.
Instead, he looks at two of the broadcasting standards: Balance and Accuracy. Why? I don’t know. Perhaps because they provide guidance on what sort of conduct might be responsible when a broadcaster is airing a story. If so, one might have thought that the Fairness standard would also be relevant.
The judge quotes at length from the two standards and the BSA’s commentary on them. He refers to the views of TVNZ’s expert, Gavin Ellis. It’s fair to say that the Balance and Accuracy standards overlap to some degree with some of the Durie factors. But it seems odd to focus on them exclusively in this context.
The judge reiterates his finding that TVNZ broadcast an allegation that there were not enough emergency stop buttons on Talley’s machines, and Talley’s knew about this but didn’t fix it. He says the real sting here was the not-fixing-it. And he said this was TVNZ’s conclusion, not something that a source said. In other words, TVNZ didn’t have any source saying Talley’s had failed to fix the problem. That’s a factor pointing toward lack of responsibility in the preparation of the programme.
But I find this difficult to square with the evidence the judge describes. TVNZ’s journalist Thomas Mead gave evidence that a source told him “management at the Ashburton factory was slow to act on safety concerns. Issues were often raised repeatedly and left for long periods of time before being addressed… their main concern was around E-stops…there had been a lot of discussion about that issue but it had not been addressed.”
The judge also said “Evidence at trial included entries in Talley’s incident register of workers’ notification of issues relating to emergency stop buttons.”
TVNZ had also talked to a mechanical fitter who criticised the lack of E-stops and said Talley’s would be reluctant to shut down the whole line to fit them.
That sounds like… sources supporting the TVNZ allegations about the failures to fix known faults.
The judge also says “Mr Mead did not directly put to Talley’s the proposition that it ignored workers’ concerns about emergency stop buttons.”
Really? Here’s what Mead wrote to Talley’s, inviting a response, on the day of the broadcast: “Talley’s has been directly alerted to this risk [the problem of inadequate emergency stop buttons, and training about them] on multiple occasions but has chosen not to do anything about it.”
The judge said “TVNZ did not fairly present Talley’s response to the lesser allegations it raised with Talley’s before broadcast”. (I think this means the ones that said workers didn’t know how to find and use the buttons that were there.) He says that TVNZ also had statements from Talley’s that it would “continue looking” at the allegations “to ensure they were also adequately dealt with”, and that Talley’s thought the matter was best dealt with by “an independent and expert review.”
It’s true, Talley’s CEO had told Mead he was confident that Talley’s workers knew where emergency stop buttons were “in the areas they were trained”, and TVNZ did not broadcast this. But TVNZ did summarise Talley’s response, saying health and safety was of paramount importance and Talley’s would continually review their processes. It also reported that Talley’s had “launched its own investigation”.
It’s also true that Talley’s had not ignored the E-stop button issue. But it hadn’t told TVNZ about all the steps it had taken, so it’s hard to say it was irresponsible of TVNZ not to report it.
The judge concluded that it was “not a balanced, accurate or fair communication”. Not only does this strike me as the wrong test, it feels like the wrong conclusion.
But then, right at the end of his consideration of responsible communication, the judge changes direction. I’m just going to give you the final paragraph and let you make of it what you will.
However, noting the difference in my broad impression of each the 3 July 2021
broadcast and article, I have more closely reviewed both for the purpose of TVNZ’s
defence (no longer limiting myself to the broad impression I took away in my head
from either). In doing so, I noted there was a pause in the broadcast after Mr Mead
said “But at Talley’s it’s claimed the opposite happened” and before he continued
“Concerns about emergency stops ignored”. In the article, that pause is substituted by
the word “with”. Thus it is plain my impression the broadcast carried the conclusory
meaning I found was due to Mr Mead’s expression and emphasis, rather than to its
substance in characterising “ignored” as attributed to the unidentified source. In
retrospect, it was an impression obtained from an accident of phrasing or perhaps even
from when Mr Mead chose to take a breath. Accordingly, “ignored” not being TVNZ’s
own description of Talley’s conduct, the broadcast was not inaccurate, unbalanced or
unfair. Having regard for the “practical realities” of broadcast publication, I cannot
say Mr Mead’s expression and emphasis in the 3 July 2021 broadcast was
irresponsible. Had Talley’s proven TVNZ’s publication of the 3 July 2021 broadcast
caused it pecuniary loss, I would have upheld TVNZ’s defence of a responsible
communication on a matter of public interest, to dismiss Talley’s proceeding.
End note
I suspect this judgment will be appealed. One problem is that, because of the way the judge approached the case, particularly in his findings about meaning, there is no analysis of all the evidence relating to truth (or not) and responsible communication (or not) for almost all the broadcasts and articles sued over. So if my analysis above is anywhere in the ballpark, and an appeal is upheld, we’re probably looking at a new trial. Which seems very hard on both parties.
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