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On crooks and Labour voters
By Steven | January 30, 2026
There’s a sort of maxim we talk about in defamation classes in law school. It illustrates a point, and it’s good for a chuckle. “It’s not defamatory to call a crook an honest person”. Because it’s only defamatory if it tends to lower you in the opinion of “right-thinking members of society generally,” see?
Let’s put a finer point on it. It’s not defamatory to call a crook a police informant. Because right-thinking members of society generally would not think less of an informant. They’re the good guys.
This might not bother you overly, but it points up a bigger problem with defamation law. Is it defamatory to falsely say someone has had an abortion? No? (Maybe a breach of privacy, but that’s it?) Well, let’s say they are a devout Catholic.
Is it defamatory to falsely say someone’s had a blood transfusion. No? What if they are a Jehovah’s Witness?
That they vote Labour? What if they’re an outspoken National supporter?
The problem is that our test for what’s defamatory is based on what society as a whole thinks. And that can mean that false statements about people that ruin their reputation in a community with a particular set of values may go unpunished. (Note to defamation nerds: it’s often possible to spell out a hypocrisy meaning here. It might not be defamatory to say someone’s voted Labour, but it is defamatory to say they’re a hypocrite, and that might be one of the meanings if you’re accused of voting against your professed views).
A recent case casts bright light on this problem, and the judge suggests it might be time to fix it, though her hands are tied.
Local body candidate Paul Young sued commentator Morgan Xiao for defamation. He said Xiao had told people Young supported Taiwanese independence. Young said he didn’t. Xiao said he did. The judge said it didn’t matter. Even though the audience was the Chinese community and, to many in that community, this allegation is a dagger to the heart. That’s because wider NZ thinks it’s fine to support Taiwanese independence.
As Justice Tracey Walker said, “the coherence of this principle in a pluralistic society may need to be revisited since the reputation of a person within their own ethnic or religious community may be damaged by a statement which would not be regarded as damaging within society in general. However, the weight of authority currently does not permit this Court to depart from the principle.”
It’s true, it would have been a big call. And it’s a reform that pushes against the right to free speech in the Bill of Rights, since it expands the reach of defamation. But Walker J is not the first judge to question this rule. You can make quite a good case for reform. It seems manifestly unfair. It does seem odd that the characteristics of the audience can be considered when trying to figure out what a published statement means, but not whether it’s defamatory. The United States adopts a different rule, where damage to reputation within a significant community counts. Finally, courts, including the High Court, have recently invented a whole public interest defence to defamation, and a harm threshold. Couldn’t they go here too?
I’m not really criticising Walker J, a former media lawyer. The judgment generally strikes me as excellent. It’s reportedly under appeal though. Maybe an appellate court might take an interest in the issue?
And I should point out that the judge still finds the Mr Xiao defamed Mr Young, by accusing him of corruption, disloyalty, dishonesty and unfitness for public office. She awarded $225,000 in damages. (Sorry I can’t find a link online).
Other points of interest from the judgment
More than minor harm revised?
To be defamatory, a statement “must inherently tend to harm the reputation in more than a minor way”. That is, the words themselves, combined with their reach, must be sufficiently serious to count as defamatory. I’m not at all sure that this is what the minor harm rule was originally about, but I don’t think it’s doing any… harm. The minor harm rule still pops up again later. That is, if the plaintiff can show that the nature of the words is such that they are sufficiently harmful, the defendant then can try to show, using evidence, that in fact they did not do more than minor harm (because they were said to people who didn’t believe them, or the plaintiff already had a bad reputation so they didn’t add much, for example).
A different approach to meaning online
Things online are read differently. People tend not to read them closely. They skim. They skate over the surface. They carry impressions from earlier in a thread. All of this can shape meaning. Judges overseas have made similar points. It’s being bedded in here now.
Some good practical advice
Commentators sometimes adopt facts and treat them as true and add their own take on them. Those facts may be defamatory and wrong. Commentators are best advised to write “If true then…” The judge says this a couple of times. Mr Xiao did not do it. It’s not a formula that will always render a publication safe. But it makes it more likely to be treated as an honest opinion or a responsible publication.
The new public interest defence
Justice Walker is always worth reading when she writes about this. Her analysis was also really good in Christian v Bain.
Here, she found that the defence wasn’t available to Mr Xiao because:
— The allegations were serious and called for careful verification, particularly in the lead-up to an election; Mr Xiao took little care.
— his reporting was deliberately selective
— he did not fact-check
— he relied on sources but didn’t say something like “if true, then…”
— he relied on obviously biased sources
— the sources themselves did not provide evidence for their claims
— he presented his findings as an “investigation” but did not investigate
— he included no balance
— he deliberately omitted material inconsistent with his allegations
— he used hostile vilifying language; he was running a campaign
— Mr Young had publicly taken issue with the claims. Mr Xiao did not retract them or, it seems, stop making them or properly report his denial.
Interestingly, the judge held that the failure to put the allegations to Mr Young before publication was “not a weighty consideration.” If Mr Xiao was mainstream media rather than a social media commentator, it certainly would have been. It seems that the judge didn’t think that step could be expected in publications of this sort. But it was still a factor of sorts, and supported her conclusion that the publications were not responsible ones.
Nor did she feel that Mr Young’s failure to respond on the platform (WeChat) amounted to some sort of admission. He wasn’t required to do so. Nor was he required to try to publicly counter the harm to mitigate the damage: the judge said this would have been counter-productive or futile and so was not necessary.
I think all of this is really helpful in understanding how the new defence of responsible communication in the public interest operates.
Grapevine effect
This is the idea that statements published online can spread online and off. There was little evidence of spread. The judge found that thousands access the posts, but not more. But she was prepared to infer that the posts would have spread and “garnered wide attention in the Chinese community”, in part due to evidence of shunning given by Mr Young.
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