Gordon Campbell | Parliament TV | Parliament Today | News Video | Crime | Employers | Housing | Immigration | Legal | Local Govt. | Maori | Welfare | Unions | Youth | Search

 

Judgment: New public interest defence to defamation claims


COURT OF APPEAL OF NEW ZEALAND

TE KŌTI PĪRA O AOTEAROA

31 July 2018

MEDIA RELEASE – FOR IMMEDIATE PUBLICATION

DURIE AND ANOR v GARDINER AND ANOR [2018] NZCA 278

PRESS SUMMARY

This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

1. The Court of Appeal today released a judgment recognising the existence of a new public interest defence to defamation claims arising from mass publications. The elements of the new defence are that the subject matter of the publication must be a matter of public interest and that the communication must be responsible.

2. In recognising the new defence, the Court held the form of qualified privilege recognised in Lange v Atkinson [1998] 3 NZLR 424 (CA) and [2000] 3 NZLR 385 (CA) has been replaced. The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

3. The Court was unable to agree on a related issue known as “reportage”: whether mass publication of an allegation without verification of its content is protected where the public interest lies in the fact of the allegation having been made, rather than the truth of the allegation.

Background

4. Sir Edward Durie and Ms Donna Hall issued defamation proceedings in response to a story broadcast by Māori TV and published on its website. Sir Edward was at relevant times co-chair of the New Zealand Māori Council. Ms Hall is a high-profile lawyer specialising in Māori legal issues and had been representing the Council before the Waitangi Tribunal.

5. Sir Edward and Ms Hall say the broadcast and website story conveyed various defamatory meanings. They also complain that the website story did not initially include Ms Hall’s response to the allegations.

6. The High Court had declined to strike out the respondents’ public interest defence that relied on legal developments in the United Kingdom and Canada. The Judge held the defence pleaded was available and would not inevitably fail on the facts. On appeal, the appellants conceded some form of public interest defence might now exist in New Zealand. The argument was on the boundaries of such a defence, and whether the respondents could tenably rely on it.

The Judgment

7. Building on English and Canadian case law, the Court of Appeal has concluded it is time to strike a new balance between the right to protection of reputation and the right to freedom of expression by recognising the existence of a new defence wider than that in the Lange v Atkinson decisions. The new defence is not confined to parliamentarians or political issues but extends to all matters of public concern.

8. The new defence requires the subject matter of the publication to be of public interest, and the communication to be responsible. Both are to be determined by the judge, not a jury. It is available to all who publish material in any medium, and is not part of the rubric of qualified privilege. Therefore, the Lange v Atkinson form of qualified privilege has been replaced.

9. In this case, it was common ground the publications were on a matter of public interest. The key issue was whether communication was responsible. The Court held the public interest defence was untenable in relation to the website story for the period of time before Māori TV published Ms Hall’s responses. Other challenges to the responsibility of the communication were held to be properly left for trial.

10. Concerning reportage, the majority held it is not a separate defence but part of the same spectrum. Reportage is a special and relatively rare situation and need not be pleaded separately. Dissenting, Brown J expressed concerns about reportage including its relationship with statutory defences. If it is to be recognised, Brown J considered it should be viewed as a discrete defence. The Court held unanimously that reportage is not available in this case as one of the most prominent assertions was portrayed as fact, not as an allegation.

Full judgment: DurievGardinerNZCA278.pdf

© Scoop Media

 
 
 
Parliament Headlines | Politics Headlines | Regional Headlines

Gordon Campbell: On What Leadership (And The Lack Of It) Looks Like

Leadership is an intangible quality, but most New Zealanders will be thanking their lucky stars for what’s being provided by PM Jacinda Ardern and Ministry of Health Director-General Ashley Bloomfield. On a daily basis, both have been clear and decisive about the rationale for the policies they’re pursuing and - by and large - they’re managing to re-assure the public, and yet prepare them gradually for the bad times and challenges to come...More>>

 


Police Commissioner: Christchurch Terrorist Pleads Guilty

Police acknowledge the guilty pleas in the Christchurch Mosque attacks prosecution that were entered in the Christchurch High Court today. The guilty pleas to 51 charges of murder, 40 charges of attempted murder and one charge of engaging in a terrorist ... More>>

ALSO:

Government: Nation Steps Up To COVID-19 Alert Level 2

New Zealand has been moved up to COVID-19 Alert Level 2, Reduce Contact, in an escalation of efforts to reduce the spread of the virus in New Zealand, Prime Minister Jacinda Ardern announced today... More>>

ALSO:

COVID-19: Business Response Package

Cabinet today approved the development of a Business Continuity Package to help support the economy through the disruption caused by COVID-19. “New Zealand is well-placed to respond to COVID-19. More>>

ALSO:


Transport: $54 billion Investment In Draft GPS 2021

The Draft Government Policy Statement (GPS) 2021 on land transport confirms that the Government will invest a record $54 billion in its balanced transport policy over the next decade. More>>

ALSO:

Gordon Campbell: On The Loss Of Abortion Safe Zones

No doubt, last night’s defeat of abortion law reform provisions that would have created safe zones around abortion clinics will be portrayed, by some, as a victory for free speech. It isn’t. It was a victory for bigotry and intimidation directed ... More>>

ALSO:

Gordon Campbell: On National's Regulation Crusade

Lets step back in time now, to simpler days and to simple-minded solutions. So…. if National gets elected, landlords will once again be able to evict tenants at will, raise rents anytime they like, and ignore the need to install a healthy standard of heating in the homes they put out to rent. This promised ‘bonfire of regulations’ is being done in the name of cutting red tape... More>>

ALSO:

SMC - Expert Reaction: PF2050 Strategy

DOC has released a strategy to reach Predator Free 2050, along with an action plan through to 2025. The predator-free goal focuses on three groups of mammals: possums, three species of rats, plus stoats, ferrets and weasels... More>>

ALSO:


Land, Air And Sea: Regions To Benefit From NZ Upgrade

Regional New Zealand will be a hive of activity in the coming months as the New Zealand Upgrade Programme delivers on its promise to modernise our infrastructure, prepare for climate change and help grow our economy. As part of the $12 billion ... More>>

ALSO:

 
 
 
 
 

LATEST HEADLINES

  • PARLIAMENT
  • POLITICS
  • REGIONAL
 


 

InfoPages News Channels