What ‘qualified privilege’ allows and doesn’t allow politicians to say outside Parliament remains unresolved after the Hagaman v Little defamation case.
There are questions about whether the judge should have instructed the jury to allow qualified privilege for Labour leader Andrew Little.
While the jury found that Little had made a defamatory statement affecting Earl Hagaman they couldn’t decide whether Little was protected by qualified privilege. And the jury couldn’t decide whether four other statements constituted defamation or not.
Little’s April 2016 statement Auditor-General must investigate Niue deal for donor that I presume is the one the jury found to be defamatory said:
John Key must come clean on how a donor who gave more than $100,000 to his party during a tender process, won a hotel management contract which led to a Government-funded, $7.5million upgrade to the resort, Leader of the Opposition Andrew Little says.
“Today’s revelations about the Scenic Hotel Group and its resort contract in Niue stink to high heaven following its dodgy deals with SkyCity and the Saudi sheep deal.
“It is why I have today written to the Auditor-General asking her to investigate whether Earl Hagaman – who was the largest living financial donor to the National Party – giving money to the party at the same time his company was tendering for the Niue contract was above board.
In May 2016 the Hagamans asked for an apology from Little. Stuff: Andrew Little refusing to apologise over his comments about a Niue resort deal
Little looks set to face defamation proceedings after ignoring an ultimatum and failing to apologise to the Hagamans.
In a statement from Lani Hagaman she said she would “see Mr Little in court” after he failed to retract and apologise his comments that a Niue resort deal they were awarded “stunk to high heaven”.
Little has written to Hagaman’s lawyers saying he has a “constitutional duty to challenge the actions of the Government over the expenditure of public funds”.
He will address the issues with the Hagamans once the Auditor-General has dealt with his request, either by “concluding an investigation or declining to conduct one” regarding a Niue resort deal.
In September 2016 the Auditor-General found nothing wrong with the awarding of the contract. Stuff: AG clears contract at centre of political donations row
The Auditor General has found there was nothing unusual about the selection of Scenic Hotel Group as the operator of a Niue tourism resort at the centre of a political row over a six figure donation to National.
Auditor General Lyn Provost said from the available information her office had found there was a standard procurement process with reasoned and documented analysis for the selection of Scenic Hotel Group to operate the resort, and for the subsequent investment of New Zealand international development assistance funds in expanding the resort.
Little is now being sued for defamation by the Hagaman’s after refusing to apologise and retract a statement that the deal “stunk to high heaven”.
Little said in a statement the limits to Provost’s mandate meant she was unable to address the key issues he had raised.
“I have a duty as Leader of the Opposition to raise questions in the public interest and respond to media stories on the use of public funds.”
He would not comment further as the matter was before the courts.
No apology, in fact Little questioned whether the Auditor-General had addressed the issues he raised.
Then just over a week before the defamation was due to go to court Little issued via a media a statement an apology of sorts – Statement re Earl Hagaman
It was a matter of public record that Mr Hagaman had donated $101,000 to the National Party in that same month. This generated considerable media interest. As Leader of the Opposition, I considered I had an obligation to respond to media questions on the issues which related to government actions. I referred the matter to the Auditor-General because I believed the public was entitled to be reassured. My focus was, and has always been, on holding the Government to account.
Throughout, the Hagamans have vigorously maintained there was no connection between the award of the contract to Scenic and Mr Hagaman’s donation. The Auditor-General did not establish any connection.
In those circumstances, I thought the matter should be resolved. Over the last three months, I have made a serious effort to do that. Today I want to publicly apologise unreservedly to Mr Hagaman for any hurt, embarrassment or adverse reflection on his reputation which may have resulted from my various media statements. I have offered that apology to the Hagamans. I have also offered to make a substantial contribution towards the Hagamans’ costs; an amount I am advised, was greater than would likely have been awarded by the Court.
I want to make it clear that the object of the criticism was the actions of the National government and that I intended to reflect no impropriety on the part of Mr Hagaman. I accept that no connection has been established between the donation and the award of the management contract and the hotel upgrade.
So Little accepts that no connection was found between the donation and the contract – in other words, his accusation was unfounded. And he apologised unreservedly “for any hurt, embarrassment or adverse reflection on his reputation”.
In court Little also apologised – RNZ: Andrew Little defends efforts to settle defamation case
Mr Little told the court he accepted the Hagamans were entitled to an apology, and letters were exchanged between his lawyers and the Hagamans about that.
“As I’ve said, once the Auditor-General did her inquiry, I accepted her conclusion there was no impropriety and I was happy to give them a public apology.
I can find no indication that Little accepted the A-G’s finding, in fact he said “she was unable to address the key issues he had raised”.
Mr Little said he was sorry for any hurt he had caused the Hagamans, and apologised to Lani Hagaman in person in court today.
“I apologise for the words … causing you hurt and I stand by the efforts I’ve made to resolve this matter,” he said.
So Little acknowledged causing hurt and apologised.
Despite this the jury found that Little had not defamed Lani Hagaman, but they did agree he had defamed Earl Hagaman. Little’s defence was that he had qualified privilege.
In summing up Judge Karen Clark had said that qualified privilege was a defence that Little could use – from Stuff:
The onus was on the Hagamans to prove that Little’s comments had the meaning they claimed and that they were defamatory.
…the Hagamans were only required to prove their case on the balance of probabilities, not beyond reasonable doubt as in a criminal case.
The “crucial first step” to identify the meanings of Little’s words, as ordinary, reasonable person would understand them.
If they agreed with the Hagamans’ interpretation of the phrases, they then had to decide whether they were defamatory and had lowered their reputation in the eyes of right-thinking people.
Clark said she had ruled that Little’s comments were protected by qualified privilege as he had a duty, “whether legal or social or moral”, to comment.
However, that defence could be “defeated or effectively negated” if the jury found his comments were predominantly motivated by ill will targeted directly at the Hagamans, or if he had taken improper advantage of his privilege.
This could be legally contentious. Nick R, who I believe may be a lawyer, stated at Kiwiblog:
Earl Hagaman might yet be able to appeal the decision to allow the qualified privilege defence to go to the jury.
This is common law qualified privilege, and it is far from clear that the Judge was correct to allow it in this case. But whether Mr Hagaman appeals that is another question.
Defamation actions against politicians are not common, and this may be without precedent.
Asher Emanuel sat through the trial and wrote at The Spinoff in Watching the Hagaman-Little defamation trial, it felt like everybody lost:
Throughout the trial both sides hinted or at times plainly stated the other side was politically motivated. But wasn’t this Little’s job, as an opposition politician, to be critical of the government and its supporters?
Actually, that’s sort of what the Judge ruled, allowing Little to raise a defence which hadn’t been applied before in a similar situation in New Zealand or, as far as I am aware, in countries with comparable defamation law.
So it may be a legal first.
Little couldn’t be liable for defamation when speaking as leader of the opposition on a matter of public interest and on which questions were being put to him. (With the condition that he could be liable if he took improper advantage of the occasion or was mainly motivated by ill-will towards the Hagamans, both of these being questions for the jury.) In the arcane language of defamation law, he was speaking on “an occasion of qualified privilege”.
In summary, Little made at least one statement making unfounded allegations that he concedes hurt the Hagamans, and he has apologised for that.
The jury found that one statement was defamatory (they also found that one wasn’t and couldn’t agree on four others). A jury majority couldn’t decide whether the defamatory comment was covered by qualified privilege.
This was not a clear conclusion.
And the judge broke new legal ground allowing qualified privilege.
Lawyers often like to test new precedents in higher courts to get a definitive ruling on it.
However it was said in court that Earl Hagaman is dying, so he may not want to take this matter any further. He may not survive long enough to see it through if he did.
But if it did go to another trial or an appeal it may bring some clarification to what is currently a confusing situation on qualified privilege.
It would be beneficial for potential targets of defamatory comments, and for politicians, to know where the law stands on qualified privilege. At this stage it remains unresolved.