Expanded protection for politicians?

Vernon Small thinks that The Hagaman-Little defamation case looks to have expanded protection for politicans

…without a lot of fanfare this week the rights of politicians to speak out without forking out on defamation claims seem to have been extended.

Of course, MPs already have that protection when speaking in the House under parliamentary privilege.

But their qualified privilege, beyond the confines of parliamentary debate, appears to have been broadened in a significant way – pending an appeal – with the release of Karen Clark’s considered judgment in relation to the defamation case between business couple Earl and Lani Hagaman and Labour leader Andrew Little.

As was widely reported, the jury found in Little’s favour in respect of Lani Hagaman’s claims.

In the case of Earl Hagaman’s claims it found by a majority that in one of the six causes of action Little had defamed him, but the jury could not agree whether he had lost the protection of qualified privilege.

The jury could also not agree whether Little had defamed Hagaman on four of the other five claims.

What is interesting about Clark’s judgment – and what is likely to spark a forensic analysis by politicians and those who deal with them – is her explanation of her ruling on qualified privilege including an acknowledgement that she may have expanded the common law privilege.

(Though she notes that is “matched” by the check on misuse in the Defamation Act, which stipulates that a defence of qualified privilege fails if publication was “predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”.)

I would expect that “predominantly motivated by ill will” could be difficult to prove on the balance of probabilities.

It may never be tested in court but could ‘ill political will’ be considered sufficient?

Whether the Hagaman case leads to a significant extension of the protections for politicians – and an erosion of individuals’ opportunity to win defamation actions against them – remains to be seen.

These cases are always determined on the facts. As much as there is a precedent being set here, the core of Clark’s judgment applies specifically to the Leader of the Opposition and the constitutional requirements on that office-holder.

So it is quite a narrow application of the law.

Little established his duty to make the comments “to an audience who had an interest in receiving those communications” and that it was in the public interest that his freedom of expression should prevail “over protection of reputation”.

But will we in future see attempts to extend Clark’s logic beyond the Opposition Leader, perhaps to those spokespeople with delegated roles, or even at a longer stretch to MPs generally?

The Court of Appeal’s view will be well worth watching.

Yes it will, if it happens. If Earl Hagaman dies first we may never have this ruled on by the Court of Appeal.

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