Eighteen years after the landmark decision in
Lange v Atkinson opened up the landscape for reporting about elected members of the Government, the Court of Appeal has recognised a new defence of "responsible communication on a matter of public interest" to defamation claims arising from mass media publications, and abolished the existing
Lange privilege for publications concerning political discussion. The new defence recognises the public importance of the media in communicating with us on matters of public interest, and reinforces the importance of responsible journalism.
But if it wasn't technical, it wouldn't be defamation…
Background: traditional common law qualified privilege
Traditional common law qualified privilege is a recognised defence to a defamation action.
Traditionally qualified privilege required the maker of the defamatory publication to have an interest or duty, legal, social, or moral, to make it to the person to whom it was made, and the person to whom it was made to have a corresponding interest or duty to receive it (the "duty/interest" test or, the "shared interest" test). For example, accusations against a person of theft or wrongful conduct made to persons having a proper interest in investigating such claims (such as the police, parents, or business associates).
Because it was the
occasion of publication, and not the
subject matter of publication, which gave rise to the privilege the New Zealand Courts have been cautious about extending traditional qualified privilege to matters published in the mass media to the public at large. As there is no requirement that the publication be "reasonable" under the traditional duty/interest test, there has been a concern that qualified privilege for mass media publications would unduly weigh freedom of expression over protection of reputation.
Lange – extension for elected representatives
In 2000, the Court of Appeal in
Lange No 2 extended the common law defence of qualified privilege to cover political discussion published to a wide, even nationwide, audience.1 It did so essentially because it considered the existing law gave insufficient recognition to the media's critical role in a modern democracy as the channel for exchanging news and opinions among the public as a whole – in relation to the actions of current and former elected representatives.
18 years later –
Durie v Gardiner
"Is there a public interest defence in New Zealand to defamation claims arising from mass publications? And if so, what is its scope?"
Those were the key questions addressed by the Court of Appeal in the judgment of
Durie v Gardiner released on Monday.
In the High Court, Justice Mallon refused to strike out a qualified privilege defence to a defamation claim in respect of matters published in the media to the public at large formulated as:2
"neutral reportage or, alternatively, responsible communications on matters of public interest".
In its judgment, the Court of Appeal recognised the existence of a public interest defence in New Zealand to defamation claims arising from mass publications (of which neutral reportage3 is to be viewed as being at one end of the spectrum rather than a standalone defence).
The Court of Appeal, drawing from strongly from Canadian jurisprudence, held the elements of the new defence should be:
Importantly, in a defamation case tried by a jury in New Zealand, it will be for the trial judge to determine whether the two elements of the defence are established based on the primary facts as found by the jury.
In determining whether the publication was "responsible", relevant circumstances to be taken into account may include:
the seriousness of the allegation
the degree of public importance
the urgency of the matter (taking into account that news is often a perishable commodity)
the reliability of any source
whether comment was sought from the plaintiff and accurately reported
the tone of the publication
the inclusion of defamatory statements which were not necessary to communicate on the matter of public interest
This list of factors is not exhaustive. It is hoped that it will be applied in a practical and flexible manner with regard to the practical realities of 24/7 modern day newsrooms and with some deference to the editorial judgement of the publisher, rather than as a list of potentially unachievable prerequisites.
By styling the defence as one of responsible "communication", as opposed to "journalism", the Court of Appeal said it is a defence that should be available to
all who publish material of public interest in
any medium. (In other words, the defence can be relied on by "citizen journalists" who may publish outside the parameters and platforms of traditional mainstream media, provided they do so "responsibly".)
The new public interest defence arises primarily because of the
subject matter of the publication – a matter of public interest – and not the occasion on which it is published. For this reason, it is a different creature from the traditional form of qualified privilege, and exists as a standalone defence and not part of the rubric of traditional qualified privilege.
The form of recognised qualified privilege in
Lange is abolished and subsumed in the new defence of public interest. It is a watershed moment for defamation law in New Zealand, recognising the power and importance of the media not only in disseminating information regarding wayward politicians, but also in relation to other topics of real public interest.
The Court of Appeal considers the new defence of public interest should strike a more appropriate balance in modern society between the right to protect reputation and the right to freedom of expression, which is not confined to parliamentarians or political issues, but extends to all matters of significant public concern.
While the effectiveness of the new defence remains to be tested, it undoubtedly places more weight on freedom of expression when matters of public interest are responsibly communicated. The Court of Appeal's emphasis that:
may assist to ensure that the elements of the defence of public interest are applied with the fluidity that modern news media need to function effectively.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.