Durie and Hall v Gardiner and Māori Television Service [2018] NZCA 278

Thursday, August 9, 2018

This new judgment had made a significant change to the law of defamation. It has created a new public interest defence, replacing the former defence of qualified privilege as set out in Lange v Atkinson.

Background

Sir Edward Durie is a retired High Court Judge and at all relevant times co-chair of the New Zealand Māori Council. His wife, Ms Donna Hall is a lawyer with a high profile, specialising in Māori legal issues.

Sir Edward and Ms Hall issued defamation proceedings against the Māori Television Service (Māori TV) and against one of its senior news reporters, Mr Heta Gardiner. The proceedings relate to a story broadcast on Māori TV and put up on its website.

This decision resulted from an application to strike out a defence claimed by Māori TV and Mr Gardiner. To date, a public interest defence had not been established in New Zealand, although it has been adopted in the United Kingdom and Canada. The related defence of qualified privilege is not sufficiently wide-ranging to cover these circumstances.

The qualified privilege defence

The defence of qualified privilege arose in situations where the maker of the statement had an interest in making the statement, or a legal, social, or moral duty to make the statement; and the person to whom the statement is made has a corresponding interest or duty to receive it.

Although the exact boundaries of the defence were not defined, it covered comments made about Parliamentarians or people seeking to be elected to Parliament and which were made in the course of political discussion, and probably covered people in similar positions in local government. In contrast, the defence would not apply to comments relating to employed civil servants.

In this decision, the Court of Appeal noted that times have now significantly changed. There is a greater level of power held outside the political sphere, with other public figures having an impact on the Government’s policies and economy. The nature of the media has also changed, where statements through the mainstream media can potentially reach millions of people within seconds, and public discourse is more prolific and wide-ranging.

The Court of Appeal therefore decided that it is:

“time to strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement.”

The new public interest defence

The Court of Appeal set out a number of components in respect of the new public interest defence. They decided that:

  • it is a defence that should be available to anyone who publishes material of public interest in any medium (not restricted to journalists);
  • the elements of the new defence should be that:
    • the subject matter of the publication was of public interest; and
    • the communication was responsible;
  • public interest is not confined to publications on political matters;
  • the plaintiff does not need to be a public figure;
  • the defendant bears the onus of proof in establishing the defence;
  • the trial judge (not the jury) is the appropriate person to determine whether the two elements of the defence are established; this decision will be based on the primary facts as found by the jury.

For the subject matter to be of public interest, it should be a subject attracting public attention, or about which the public or a segment of the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached.

When deciding whether the communication is responsible, the judge should have regard to all relevant circumstances, including the seriousness of the allegation, the degree of public importance, the urgency of the matter, the reliability of any source, whether comment was sought from the plaintiff and accurately reported, the tone of the publication, and whether defamatory statements which were not necessary were also included.

The Court of Appeal also noted that the conduct of the person making the statement must be assessed as at the time of publication. Information which comes to light later cannot be used to justify a statement which was defamatory at the time that it was made.

Conclusion

This decision demonstrates that the Court of Appeal is prepared to consider the implications of new technology and new media.

This decision is, however, not the end of the road. Having established that the defence of public interest is available, the proceeding will now head back to the High Court to determine whether the defence applies to the facts of the case.

A copy of the judgment is available here.

For further information please contact Jonathan Scragg or Jonathan Forsey

 

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.