Court of Appeal widens defamation defence

The Court of Appeal has widened the qualified privilege defence to defamation to cover material in the public interest, beyond previous restrictions to coverage of politics, in a finding on a case relating to Māori TV from 2015.

The court was considering an appeal by Edward Durie and Donna Hall over a 2015 story broadcast by Māori TV and published on its website about infighting at the Māori Council and the false allegation that the council dismissed Hall in its proceedings regarding the Trans-Pacific Partnership Agreement. Māori TV argued the publications were covered by qualified privilege as they were "matters of public interest" due to the Council’s prominent role in Māori affairs.

In an interlocutory decision from the defamation case brought by Durie and Hall, the High Court said Māori TV was able to use two defences - that the case was classified as reportage; and that the first website story, which didn't include a statement from Hall, was covered by a defence of public interest. Today, the Court of Appeal struck out those defences.

The court said there was a "fundamental failing" in Māori TV not publishing Hall's statement with its first web story, and it did not clearly convey that the claim of Hall's dismissal as legal counsel on the TPP action was an allegation by a third party.

Beyond the case, the court has created a new defence to defamation, replacing the qualified privilege defence that existed for coverage of parliamentarians or political issues. That defence came from the landmark Lange v Atkinson ruling in 1998, where the Court of Appeal affirmed that qualified privilege covered publications about the behaviour of publicly elected officeholders and those seeking such office.

"Eighteen years later, however, we consider it is again time to strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement," the court said in a decision published this afternoon. "Although the existence of such a defence was rejected in Lange, we consider that subsequent societal and legal developments justify recognising it now."

The court said that there is now much more power outside the political sphere than in 1998, and increased public expectation in the accountability of non-political groups. The boundaries of freedom of expression, included in New Zealand's Bill of Rights Act, are also being explored, and juries are increasingly less important in defamation trials, the court said.

Changes to technology and the emergence of social media and the citizen journalist have also "radically changed the nature of public discourse", making a responsibility requirement necessary to safeguard reputation and privacy rights, the court said. The defence is available to mainstream media and non-media alike, as a distinction wouldn't be justified either as a matter of logic, policy or principle, the court said.

Requirements on the defence are that material published be of public interest, and that the communication be responsible.

"On both issues, the defendant bears the onus of proof. As already mentioned, in light of new technologies which enable anyone to communicate to the world at large, it is a defence that should be available to all who publish material of public interest in any medium," the court said.

The court accepted there are difficulties in applying responsibility criteria to non-media defendants "who communicate defamatory material in quite different ways to the mainstream media" but said those aren't insuperable and are being dealt with on a case by case basis in England.

In a statement, Durie and Hall said they were delighted with the decision, and thanked the Court of Appeal "for the extensive effort that has clearly gone into its judgment".

"It is important that there is protection in New Zealand for publications in the public interest. But such a defence should never succeed where false allegations are published without verification and without publishing a full and proper response," Durie said in a statement via Felix Geiringer, barrister for him and Hall.

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