Professor Ursula Cheer University of Canterbury, School of Law The burgeoning of freedom of expression in New Zealand defamation law

New Zealand law comes from the Defamation Act 1992 and the Common law New Zealand law comes from the Defamation Act 1992 and the Common law

Plaintiff only has to show: The statement is defamatory; The statement refers to the plaintiff; The statement is communicated to a third party. › Defences

Defences The media's privilege is a qualified privilege only. There are a number of different types of qualified privilege: – Statutory Stronger Weaker – Common law Political discussion –True public interest? –Neutral reportage

Common law qualified privilege There are requirements of duty or interest, and common interest at common law: – "A privileged occasion is... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.”Adam v Ward [1917] AC 309.

A special form of qualified privilege: – Constitutional privilege

The Lange decisions

(1)The defence of qualified privilege may be available in respect of a statement which is published generally. (2)The nature of New Zealand’s democracy means that the wider public may have a proper interest in respect of generally- published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office. (3)In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.

(4)The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern. (5)The width of the identified public concern justifies the extent of the publication. (6)To attract privilege the statement must be published on a qualifying occasion.

Developments since Lange Vickery v McLean

Osmose

Peters v TVNZ

Smith v Dooley [2013] Dooley v Smith [2013]

Karam v Fairfax New Zealand [2012]

Cabral v Beacon Printing & Publishing [2013] Local development project Not public interest topic

Karam v Parker [2014] Discussion about Joe Karam on a website. Although a website set up by the defendant called Counterspin was set up to provide information to the public about the David Bain case, as a vehicle to express Mr Parker’s views it did not appear to give rise to a duty to do so.

Loss of Privilege Privilege will be lost at common law if the occasion is abused by the defendant eg: the defendant has an ulterior motive for publishing the matter, such as to destroy a person’s career. Defamation Act 1992 s 19(1) - Ill will or taking improper advantage of the occasion: the defence will fail if the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication. Lange v. Atkinson (Lange No 2) [2000] 3 NZLR 385 at 400 Recklessness, cavalier as to the truth

Ursula Cheer 2015 Fin