New public interest defence to defamation – Court of Appeal

Lange v Atkinson[1998] has often been quoted and used as a defence in defamation cases over the last twenty years. The Court of Appeal has just released a decision that will replace this legal precedent.

The judgment recognises 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.

Unlike the political focus of Lange v Atkinson the new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern.

This should also apply to blogging and other types of online publications.

An element not agreed on by the Court is ‘reportage’ – verification of content before publication.


COURT OF APPEAL OF NEW ZEALAND

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

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 http://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

Not trusted: bloggers, MPs, media

Many people have little or not trust in bloggers, MPs and media.

NewsHub reports Kiwis don’t trust MPs, bloggers – survey

What the headline doesn’t say is that not far behind bloggers and MPs in levels of distrust is the media.

Victoria University’s Institute of Governance and Policy Studies surveyed 1000 adults at the end of February (via Colmar Brunton).

Least trusted professions (little or no trust):

  • Bloggers 60%
  • MPs 55%
  • Ministers 53%
  • Media 46%

A healthy democracy needs a strong media to hold politicians to account. That about a half of those surveyed don’t trust the media is a major concern.

Bloggers are relatively small, relatively unknown and non-influential. Even the most notorious bloggers, Cameron Slater, David Farrar and Martyn Bradbury are not well known or unknown amongst much of the public.

The major political blogs – Whale Oil, Kiwiblog, Public Address, The Standard and The Daily Blog are fringe media ignored or unknown by most.

Most blogger publicity associates blogs with Dirty Politics. The biggest blogger, Slater, has openly promoted dirt in politics.

It’s generally healthy to be sceptical of MPs.

Most of the major blogs have affiliations or close connections with politics and political parties so it’s no surprise to see that the lack of trust of both groups is similar.

But distrust of the media is a real worry. If they can’t be trusted to keep politicians honest or expose their dishonesty our democracy is in a shaky state.

Institute director Michael Macaulay claims it’s the most in-depth study of its kind undertaken in New Zealand.

“It shows the people, the public, the 1000 people we spoke to don’t trust the media, don’t trust MPs and don’t trust local Government.

“It may well be that this is the result many politicians fear but also expect. It might be something to worry about, it’s certainly something that needs to be discussed.

“But before anyone jumps to conclusions, before anyone goes crazy or takes offence or decries this as the last part of human civilisation, we need to take stock, have a chat and see how bad it actually is.”

To have a proper chat to try to evaluate how bad it actually is we need to see details of the survey. I can’t find them online.

Prentice ‘disclosure’

Irony alert.

Lynn Prentice has made a ‘disclosure’ in small print on an attack post on a fellow blogger/cpmpetitor, Cameron Slater has a idiot for a lawyer. (He also defends his use of ‘a idiot’ – “ I suspect that either a or an works in this case” – use of ‘a’ where ‘an’ is normal is a signature of his style).

Disclosure for the benefit of the usual trolls in the unlikely event that they read down this far.I have never met Cameron Slater. But after observing his behaviour for over seven years, I think he is simple in his inability to think things through to consequences, rather sociopathic in his inability to understand anyone elses feeling apart from his own, and inclined to be led by whoever is influencing him at the time. He appears to be a good match for being a simple thug. Which is why he has been such a useful tool for the factions in the right from John Key to Simon Lusk.

I also think that Slater brings blogging and journalists into disrepute. I have met good and effective journalists and I am a blogger who doesn’t tolerate the kind of crap that Slater has done. I want him gone from blogging. I presume most decent journalists want him gone from journalism.

Prentice also brings blogging ‘into disrepute’. He tolerates all sorts of crap at The Standard – and leads by example, being an abusive bullying crap artist who seems to have difficulty tolerating criticism or being held to account.

From what I have seen most ‘decent journalists’ would put Slater and Prentice into similar categories when it comes to blog behaviour and ethics.

Politics and blogging not so bad here

I sometimes despair at the quality, behaviour and ethics of our politicioans and of our wider political discourse. Things could and shoulds be better.

If you listen to some of the more extreme political views, from the right at Whale Oil and Kiwiblog, and from the left at The Standard and The Daily Blog, you might think New Zealand is teetering on the edge of self destruction.

But we live in one of the best parts of the world in the best of times for civilisation. What’s happened in the recent and more distant past should be a constant reminder to how to us about how much things have improved for Western civilisation at least.

And what’s happening right now in Syria and Iraq, in northern Kenya and in the Ukraine should make us very thankful about our quality of life in general in New Zealand.

Two pieces of recent news brought this to mind.

American blogger hacked to death in Bangladesh

A prominent Bangladeshi-American blogger known for speaking out against religious extremism was hacked to death as he walked through Bangladesh’s capital with his wife, police said Friday.

The attack Thursday night on Avijit Roy, a Bangladesh-born US citizen, occurred on a crowded sidewalk as he and his wife, Rafida Ahmed, were returning from a book fair at Dhaka University. Ahmed, who is also a blogger, was seriously injured.

Roy was a prominent voice against religious intolerance, and his family and friends say he had been threatened for his writings.

Similar attacks in the past in Bangladesh, a Muslim-majority nation of 160 million people, have been blamed on Islamic extremists.

Blogging in New Zealand may seem knarly at times but it’s limited to online abuse by a relatively small and harmless number of numpties who flail in futility.

Nemtsov murder: Russian society polarised as theories abound

Russia woke up in shock on Saturday. The press, the social media, the politicians – all describe the killing of Boris Nemtsov, one of the leaders of the country’s opposition, as something that was – until Friday night – completely unthinkable.

He was gunned down a stone’s throw away from the Kremlin, in an area which is always tightly policed, and where security cameras are everywhere you look. He was, it appears, tracked for hours as he travelled around central Moscow.

Russian President Vladimir Putin called the killing a “provocation” and ordered Russian police chiefs to personally oversee the investigation.

And they were quick to come up with suitable theories.

The head of the Russian Investigative Committee, Vladimir Markin, said that he believes the murder could have been “a provocation aimed at destabilising the country”.

The assassination of Mr Nemtsov is already polarising society. Opposition supporters blame the Kremlin. And pro-Kremlin experts and pro-government media are, mostly, in agreement with President Putin.

That should put grizzling here into perspective.

They’re all pretty ho hum in comparison.

We should be thankful for how benign politics is in New Zealand. Sure there’s room for improvement and we should keep pushing for that but bloggers can safely tell our politicians whatever we like without fearing for our safety.

Being stalked and persistently and pointlessly pissed on by One Anonymous Bloke is very lame in comparison.

The Bloggers Gang

The Press Council is proposing to allow bloggers to become members. Rod Emmerson at NZ Herald generalises:

Just as some current members of the Press Council might see themselves differently to how they are depicted here, some bloggers won’t see themselves as part of a skull jacketed gang of thugs.

I’ve been called many things (including Beige Badger and Mother Teresa), I beg to differ from this image.

Are there any female bloggers?

If you read Jonathan Milne’s In bed with the bloggers in the Herald on Sunday or online you might get the impression that blogging is an all-male domain. He didn’t mention any female bloggers at all. This omission was pointed out by a number of people.

There’s no doubt that New Zealand political blogs are dominated by men, and more male behaviours are apparent. But there are female bloggers out there. They are fewer in number and are not such loud attention seekers as some of the male bloggers but they contribute to the blogosphere.

Open Parachute publishes monthly blog rankings – where are the women on that list? Note that not all blogs submit data for this.

Whale Oil (OP1)
Cameron Slater is obviously prominent but has a team of helpers, mostly male. They’ve advised that female input is “lux who does Photo of the day and cactus who contributes occasionally “.

Kiwiblog (OP2)
David Farrar’s blog but he sometimes has female guest posts (there’s one today from Jadis) and Kokila Patel is sub-editor and ” arranges the daily general debates, and the notices of upcoming political TV shows and the like”.

The Standard (OP3)
A multi-author blog, most being male but Karol is a frequent contributor and is often active in the comments.

The Daily Blog (OP4)
Fifty authors are currently listed, of which about twenty one are female but most post infrequently. In practice male authors seem to dominate but two of the latest posts are by  and and more female authors are dotted through the post list.

Homepaddock (OP13)
The top ranked female run blog is “rural perspective with a blue tint by Ele Ludemann”. Ele is active in National but blogs about many general topics.

Not ranked by Open Parachute:

Public Address Most recent posts are by Russell Brown and he tweets under the @publicaddress handle (he says Public Address would rank about fifth in Open Parachute). Of eight authors listed two are female but only Up Front (Emma Hart) is currently blogging (last post Februray 4).

Pundit
Of the fifteen listed authors seven are female but only Jacqueline Rowarth (last post February 11) and Josie Pagani (regular posts) are recently active. There are more male posts.

Ideologically Impure
(Queen of Thorns) – Lefty, feminist, Wellingtonian, philologist, geek, willing tequila-drinker, and rejecter of labels- “boutique identity politics / well renowned for friendly fire casualties”. Queen of Thorns has also been an author at The Standard, and at The Daily Blog until a falling out (she has been removed from the author list).

Tangerina
Coley Tangerina “Finally, the feminist killjoy witchy cat lady blog you’ve been looking for” looks to be an occasional blogger.

There are also females connected to MSM posting on media blogs but they are seen more as journalists with columns than bloggers.

If you are an active female blogger or know of any female bloggers please comment here or email and I’ll compile a bigger list.

Note – a female author will soon start posting at Your NZ.

If there are any other females (or males) interested in occasionally or regularly expressing your views or otherwise join the blogosphere please contact me –  petedgeorge@gmail.com

The Whale Oil West Coast provocation

This appears to be where the attacks and threats against Whale Oil began:

Blogger puts boot in

Provocative right-wing internet blogger Cameron Slater was today standing by a headline that described Greymouth car crash victim Judd Hall as “feral”.

Mr Hall, a 26-year-old from Runanga, died when a car in which he was a backseat passenger left the road and crashed into a house about 11 o’clock on Friday night.

At 7.21am on Saturday, Mr Slater’s Whale Oil blog site carried a brief story on the crash under the heading, ‘Feral dies in Greymouth, did world a favour’.

When contacted by the Greymouth Star today, Mr Slater accepted that he did not know Mr Hall or his family, but justified the “feral” description by saying: “It is Greymouth, isn’t it? Didn’t Helen Clark say that you are all feral?”

He said anybody travelling at 140kph in a car in a 50kph area was ‘feral’, whether on the West Coast or in south Auckland.
He did not regret the headline and would not be apologising for it.

“It’s a tragic situation but where is it written in the rule books that you have to take into account people’s feelings?” the blogger said.

Grey District Mayor Tony Kokshoorn said the headline was “an utter disgrace”.

“This young lad has a mother and father who are going through a great deal of hurt at the moment. It’s compassion and support they need at the moment, not condemnation from the likes of Slater,” Mr Kokshoorn said.

“They (the parents) are people that Slater has never met, does not know, so for him to describe their offspring as feral is the lowest of the low and an utter disgrace.”

Slater was unwisely provocative (as he sometimes can be) and insensitive to Hall’s family and friends but some of the response has been way over the top.

See  Whale Oil woes.

Whale Oil judged to be ‘not a news medium’

A judge has ruled that Cameron Slater’s blog Whale Oil was “not a news medium within the definition of … the Evidence Act. It is not a means for the dissemination to the public or a section of the public of news and observation on news”. NZ herald reports:

Judge rebuffs Whale Oil, orders blogger to reveal sources

Slater blog site cannot claim to be part of the news media, ruling says

A blogger…has been ordered to reveal confidential sources after a judge ruled his site was not a “news medium”.

The landmark ruling was made in a defamation case against Cameron Slater, founder of the Whale Oil site, who is being sued by Auckland businessman Matthew Blomfield.

Judge Charles Blackie said Slater was not entitled to rely on journalists’ rights to protect the identity of sources, as set out in the Evidence Act.

In a ruling made on September 26, Blackie said Slater’s blog was “not a news medium within the definition of … the Evidence Act.

“It is not a means for the dissemination to the public or a section of the public of news and observation on news”.

Blackie cited the Law Commission’s report News Media Meets ‘New Media’ which described blog sites as often “highly partisan” and “highly offensive and personally abusive”.

That doesn’t make sense.

Yes, blogs can be highly partisan – main stream media is often accused of being that too.

Yes, blogs can often be highly offensive and personally abusive. Including the Whale Oil blog, but it is often also “a means for the dissemination to the public or a section of the public of news and observation on news”.

While Whale Oil may at times be offensive and abusive that shouldn’t eliminate the blog from being a disseminator of news and observation on news – I think Slater’s blog clearly fits that role at times.

Judge Phil Gittos ordered Slater to present the identity of his sources in the Blomfield defamation case to the court, to be sealed in a file pending the outcome of the appeal.

The defamation case arose from stories Slater wrote last year which Blomfield claimed were defamatory.

Slater told the court a source gave him a hard drive belonging to Blomfield, which he used to write much of the material.

Blomfield said that by accessing Slater’s emails he would be able to determine whether they were written with malice, a key consideration in determining defamation.

And he argued Slater had “none of the checks and balances” of a news organisation.

“He sits at his computer and hits send.”

Blomfield applied to have Slater jailed for contempt of court for refusing to comply with the earlier order of Judge Blackie.

Judge Gittos said this would not be appropriate.

While Slater said his resources had ‘expired’ and he could no longer afford legal representation he would contest the ruling.

The report confusingly mentions two judge. Judge Blaikie made the ruling in October so presumably Judge Gitmos ruiled at a hearing last week.

 At a hearing in the Manukau District Court last week, Slater said he intended to appeal against the decision, and was given 28 days to file proceedings with the High Court.

“There is little doubt that I am part of the media. I will strenuously defend my right to protect my sources.”

NZH also confusingly mixes Len Brown in their story but the Auckland mayor appears to have nothing to do with this ruling, unless they are hinting at something here:

The ruling could open the floodgates for others to sue the right-wing blogger for defamation to find out who has given him information.

This will be of interest and could be a concern for other bloggers.

UPDATE: Whale Oil has posted a detailed response to the Herald article

http://www.whaleoil.co.nz/2013/12/oh-look-im-news-hos-tells-half-story

…plus a response from Blomfield:

http://www.whaleoil.co.nz/2013/12/matthew-blomfield-right-reply-unedited/

Will Curran fall on Labour swords?

There have been hints that the Labour council are distancing themselves from Clare Curran and the letter she sent them.Vipette at Liberation…

10 December 2012 at 09:37 AM

The situation is pretty much as you say it – Clare Curran laid a letter of complaint against the person known as “Colonial Viper” with the NZ Council of the NZLP last week. I’m told that this letter seeks disciplinary action against Colonial Viper, who is a member of the party.

And Anon at The Standard make typical statements confirming the letter exists:

I’ve seen the letter. It exists, it is from Clare Curran to the NZ Council, and The Standard authors’ representations of it are accurate. It specifically targets Colonial Viper and talks about a need to do something to bring The Standard into line.

And this suggests what happened:

Maxton December 9, 2012 10:44 PM

As far as I understand it, a paper did go to Council discussing anonymous blogging. Lots of stuff goes before Council. Much of it is quietly filed in the circular file. I have it on very good authority that was the fate of this particular paper. And I got the impression that everyone rolled their eyes at this one, and it was very much an awkward interlude between a series of awkward decisions.

This suggests either that Curran then acted on her own (or with leader approval outside the council, or that the council are distancing themselves from Curran’s actions.

From Imperator Fish:

There’s no evidence to suggest that the MP was acting in concert with others. And one commenter here has indicated that the NZ Council didn’t see any merit in her request.

Which appears to reinforce the view that it was just the actions of one deluded MP with a history of making spectacularly bad calls. Probably not the crisis many people would like it to be.

I have no reason to believe that Scott is speaking for anyone but himself, but it wouldn’t be surprising if Curran is ring fenced by the party and falls on her sword (it’s hard to see her avoiding consequences).

To minimise the damage to the party it makes sense (surely someone will do something sensible eventually) if other swords have been involved in cutting blogger’s typing hands off that they are being rapidly wiped of blood and hidden.

Chris Trotter shocker

Chris Trotter has responded to Brian Edwards (The Anonymity Pandemic) and the debate on pseudonyms and MSM versus blogger. He makes some  quite remarkable claims in Islands In The Mainstream.

The big problems will only arise when the stories people read on the blogs begin to sharply contradict stories being printed in the newspapers and broadcast over radio and television. That’s when the MSM should really begin to worry.
But if the note of alarm that has crept into the MSM’s coverage of blogs – especially political blogs – over the past few weeks is anything to go by, some of that worrying has already begun.

The tone of these attacks leaves little doubt that not only do these political journalists consider bloggers to be unwelcome and illegitimate contributors to the nation’s political discourse, but that nothing would make them happier than to see them tightly regulated and controlled. It’s an attitude that should send a shiver down every New Zealander’s spine.

A genuine “Fourth Estate” would welcome the democratisation of the gathering and distributing of news which the Internet has made possible. That so many MSM journalists have greeted the competitive spur of the blogosphere with a mixture of self-serving patch-protection and outright authoritarianism is cause for considerable concern.

Ah, where’s the authoritarianism? All I’ve seen is some journalists expressing their opinions. Seems like an attack of victimisation.

The recent Labour Party conference demonstrated in the most dramatic fashion the MSM’s capacity to misrepresent and mislead the NZ public.

Yeah, and all the bloggers did was report the whole truth and nothing but the truth.

How many bloggers were there? How many journalists? Drastically outnumbered and still managed to fight the good fight.

Mr Gower’s conspiracy theory…

The one he started via his agents Guyon Espiner, Vernon Small and ‘Eddie’?

Once it becomes clear that those principals have agreed upon an interpretation of events it is extremely hazardous for any political journalist to offer an alternative view

The integrity of how many are being questioned? Can you name names  Chris? Unlike bloggers, they aren’t anonymous.

Is this the real explanation for the sudden spate of attacks on the anonymity of these citizen-journalists?

Ah, bloggers are citizen-journos now. I guess those of us writing under our own names aren’t included amongst the comrades.

Has a focus group warned the MSM that the stories it declines to tell – and which are now turning up in blogs – are being believed?

The great focus group conspiracy.

Are more and more of the MSM’s readers, listeners and viewers coming to the conclusion that the Fourth Estate, far from speaking truth to power, has become its willing stenographer?

Are they? Has Chris been checking some focus groups of his own?

If this is true, then the decision by so many active participants in the blogosphere to remain anonymous or write under a pseudonym becomes entirely reasonable. Any system powerful and mendacious enough to suborn the one institution specifically charged with exposing its malfeasance is probably not the sort of system to be openly challenged or taunted by vulnerable individuals using their real names.

No, can’t have any old school journos holding anyone to account, can we.

The day focus groups and their deliberations cease to be confidential is the day bloggers will gladly abandon their pseudonyms and the “pandemic of anonymity” will be over.

And Chris is speaking for all the anonymous bloggers? As soon as the revolution has been won they will reveal themselves in their glory?

And the AB’s at The Standard have picked up on Trotter’s column and are praising it in “Name” journalism & voter dis-engagement:

just saying
29 November 2012 at 5:52 pm

A lot of great minds thinking alike. A very relevant and eloquent column form Chris Trotter today:

And…

karol
29 November 2012 at 7:18 pm

I’m so glad the Internet still provides a diversity of voices to hold the MSM to account, and hope that it won’t be regulated down to an exceptional minority by banishing the use of pseudonyms…. if it was even possible?

But no one should hold anonymous bloggers to account?

And I’m not aware of any proposals or suggestions to banish the use of pseudonyms. Paranoia piled on the conspiracies now.

And it’s worth noting that The Standard is billing that as the main post of the day.

The Cunliffe camp lost the leadership battle so they switch to the great media war.