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