Defamation (Torts) Flashcards

Question

INNUENDO:

Answer 1

Toiley V Fry: Tolley → was famous amateuer golfer → popular with media → prize chocolate photograph with chocolate with a poem: "The caddie to Tolley said, Oh, Sir, Good shot, Sir! That ball, see it go, Sir, My word how it flies, Like a cartet of Frys, They're handy, they're good, and priced low, Sir." States it is defamatory → because it is mocking, and they are selling their products → In this case used the character without permission HOL → using someones character to sell products without permission is defamation But does it lower persons perception in reasonable persons mind? → Digitally altered image → not protected by defamation Golfer → Was protected.

Answer 2

Called for inquiry into granting export and import licenses → included interview with Harry Judd → the words At a subsequent discussion with the same man, the disconsolate Judd told his caller to "see Phil and Phil would fix it". He warned him, whatever he did, not to let Mr Nash hear about it. By "Phil" his caller understood him to mean the Hon. Philip North Holloway, the Minister of Industries and Commerce. See phil he’ll fix it → minister. Potential take bribes and corruption. (2): The implication was he acted and was prepared to act dishounarbly in connection with the issue of import licenses COURT HELD: *Once the plaintiff had acknowledged that the words were not defamatory of him when taken in their natural and ordinary meaning, then it was absolutely incumbent on him to prove they bore the meaning alleged in the innuendo. If he only proved a lesser meaning, he would fail. Had to find it through an Innuendo → See Phil he can fix ti → can be read in many ways. Not much secondary language to find a CLEAR MEANING If relying on innuendo → Clear that he bore the meaning in the innuendo → Minister would have to prove → that enough of reputation that he was dodgy → to be read as being susceptible to taking bribes Not enough to think that was the specific meanings. Not enough evidence → to show he was taking bribes. (3); *Also note that the case also makes it clear that although Judd made the comment "see Phil and Phil would fix it” the newspaper is liable for republishing it. * *Court said that every republication of defamatory statement is a new defamatory statement and each publisher is answerable to the same extent as if the defamatory statement originated from him or her. (see earlier slide) *Why would the plaintiff sue the newspaper and not the actual maker of the statement? Every republication is a defamatory statement But there is a defensible claims. Why sue the newspaper? → Newspaper → makes more money → has savings → that means they will go for who is the most litigation friendly.

Answer 3

*Facts: * *Peterson - senior investigating solicitor of the Dept. of Justice. * *Newspaper articles reported on Peterson’s investigation (statements made or attributed to Peterson): unnamed “gang of 20” being investigated for fraud. * *Peterson then prepared memo to supervisors naming 29 people involved in fraudulent and unlawful commercial activity people including Hyams (this was privileged). Memo leaked to MPs. * *Memo tabled in Parliament (also privileged). * *Details published further by media. (2): *Issue: Whether Peterson’s statements that did not refer to Hyams by name could be capable of defaming him in light of surrounding media publicity (i.e., surrounding context). * *The Court of Appeal was ruling on whether words were capable of being found defamatory to Hyams. * *(Also identification – but more on that later). (3): *Held: Publications (that did not name Hyams) contained material capable of being understood as implying that there were substantial grounds of suspecting Hyams of fraud. * *Reasoning: Background (extrinsic) material could be used to show that Hyams was known to readers as a member of the “Gang of 20”. The privileged material could be used for this purpose as background material. (4): *Take-away: * *A statement in a publication needs be read in context – in light of other media news items that the ordinary member of the public would be cognizant of – “in light of the public mind to which the publications were addressed”. *Did the plaintiff make a defamatory statement? *No single definition *Comes down to ‘reasonable member of society’ *Looks at the publication as a whole *Not only the natural meaning of the words, but also any innuendo that clearly arises from the statement * *This creates a number of challenges, particularly for modern society Case law has used different definitions of defamation → don’t form a rigid definition → use relevant phrase → Comes down to a REASONABLE MEMBER OF SOCIETY → to answer the question whether there is a defamatory statement/ Hyams v Peterson → can be other articles → not just the source. Not just natural meaning → is there any innuendo? And there is a sufficient population that implied it, there will likely be enough for a defamatory statement.

Answer 4

What is publication → what does it mean Who is the publisher? Defence: Innocent Dissemination Murray v Wishart Internet publication

Answer 5

*Step 1: Was the publication defamatory of the plaintiff? (Lectures 1-5) *Element 1: Statement was defamatory in nature *Element 2: The statement referred to the plaintiff (first part) *Element 3: The statement was published (second part) *Step 2: If so, was the publication defensible from a statutory or common law defence? (Lectures 6-9) *Step 3: If not, what damages should be awarded? (third part, Lecture 5) HOW DOES IT FIT TOGETHER IN PROBLEM SCENARIO: If defamatory? Is it defensible, → if it is defamatory, no defence → then we need to assess damages. Element 2 → statement referred Element 3 → published

Answer 6

*The plaintiff must prove that the defamatory statement refers to him or her. * *The courts have said the defamatory statement “must be of and concerning the plaintiff.” * *An objective test – tested from the perspective of an ordinary person to whom the plaintiff has alleged the defamatory statement has been communicated. ‘ At this stage → YOU HAVE SUCCESSFULLY DETERMINED DEFAMATORY STATEMENT → If moving on to this element → You have proved initially that there is a defamatory statement made → element 1. Then → DOES THAT DEFAMATORY STATEMENT REFER TO THE PLAINITIFF MUST BE OF AND CONCERNING THE PLAINTIFF → link between defamatory statement and plaintiff that is suing the defendant. → IF generally upsetting things cannot sue → HAVE TO SHOW THAT IT IDENTIFIED YOU. OBJECTIVE TEST → not subjectively talked about you → for example. Some law lecturers have horrible accent → an ordinary person in the room would think they are complaining about everyone → Must be of and concerning the plaintiff → objectively through lens of a reasonable person, → Can’t be towards everyone. For example: public meeting → horrible australian accent lecturer in public lecture → for example there is only one lecturer that is Australian. → if only one person that fits characteristic → then reasonable person would assume that it is of and concerning the plaintiff → FROM AN OBJECTIVE POV. Would an ordinary person think it was of and concerning that person.

Answer 7

*The question is ‘are they identifiable’, not ‘are they named’ *“Lord Liver of Cesspool”- Lord Russell of Liverpool successfully sued Private Eye magazine for damages. * *Recall Hyams v Peterson (discussed last week and more on this case later): “Whether the words published would themselves lead people acquainted with the plaintiff to the conclusion that he was a person referred to.” A lot of defamatory statements → don’t specifically name the person SO → ARE THEY IDENTIFIABLE NOT NAMED. Lord Liver of Cesspool. → Lord Russell sued for that statement → because they knew it was him The test is objective → but who was around the plaintiff → who was the statement made to? → for example: if you made it in Singapore → nobody would know who the horrible australian accent is? → here it would. Take into account the knowledge and experience in the particular setting → if making statements to the world at large → You are looking at whether the people are acquainted who know the plaintiff → think they are not named but we know that they are related to that specific plaintiff. Based on EVIDENCE.

Answer 8

*Facts: * *Sunday Chronicle, 12 July 1908 (Paris correspondent describing what he seen at a motor race festival in Dieppe (Northern France): * “‘Whist! there is Artemus Jones with a woman who is not his wife, who must be, you know — the other thing!’ whispers a fair neighbour of mine excitedly into her bosom friend's ear. Really, is it not surprising how certain of our fellow-countrymen behave when they come abroad?” *Issue *Artemus Jones was a fiction character, however a real person, who was named Artemus Jones, sued in defamation. *A number of people had seen the article and believed it related to him! *Holding * *Reasoning: * *“A person publishing defamatory words may be liable even if he or she did not intend to defame anyone. What matters is not what the defendant intended the words to convey, but what they do convey to a reasonable reader or listener”. * *What matters is if reasonable people would think the language to be defamatory to the plaintiff. * *It is the publication not the defamation/innuendo that must be intentional. Can defame someone accidentally. FACTS: Sunday chronicle referred to hypothetical person Artimus Jones → not a real person for the purposes of this article → In real life he was a real person Sued the Sunday Chronicle for defamation. Said → we didnt know who you were before this But countered → many people thought it was me → so accidentally defamed me. COURT: Said that it was defamation Element → NO INTENTION → Don't need to intend to be a real person → For example: in your circle saying your a good bank robber is fine → but if she works at a bank → it will bring her reputation down → regardless of malicious intention Lack of intention → don’t need to have intention to write about a real person → what matters is not that they intended → but what they convey to a reasonable listener. → number of people thought he cheated on his partner → Intend to say these words → if its a deepfake and they mix up your words → then no defamation → but accidentally defamed someone

Answer 9

*Facts: The newspaper reported that ‘Harold Newstead, a thirty-year-old Camberwell man’ had been convicted of bigamy *It referred unintentionally to the claimant, who was also called Harold Newstead and who lived in Camberwell. * *Finding: Despite the lack of intention, it was defamatory of the plaintiff. * *Reasoning: This is because it would not have been unduly onerous on the newspaper to check whether there was anyone else who fitted that definition before publishing the statement. Court must take reasonable steps to ensure they are not defaming other people

Answer 10

*No – it is enough that some persons who know sufficient facts are able to do so. * *A plaintiff may need to plead and prove extrinsic [special] facts to the words themselves. * *The question is then whether a reasonable person possessed of those special facts would connect the statement with the plaintiff. As long as one person is able to identify it → it is likely that identification element will be satisfied → Plaintiff may need to prove the special facts → evidence to the Court as to why even though they are not specifically named → why they are not identifiable to a specific people Then → a reasonable person who had those facts → would connect the statement with the plaintiff → would be enough.

Answer 11

FACTS: D was bookseller, P → Occasionally sold boots Traded different insults in their shopfront One would say we specialise in boots Other said we are multitalented ‘why would we only do boots’ Defendant went too far (only sold boots) → said put on one man, one wife, and one trade One boot seller → but dont cheat on my wife → implied Plaintiff recently separated from his wife Housekeeper separated from her husband If you cant trust him with your wife cant trust him with your boots WAS THIS DEFAMATORY? Was successful → pleaded → wasn’t anything going on → no truth defence So did have to pay damages ‘One man, one wife, one trade’ Discern → plain and ordinary meaning, or innuendo? Plain ordinary meaning → one man, one wife, one trade. What is the implication? → if you were a new person in the area you would not understand, if another person put it up, would be interpreted as one man one wife and i only focus on one trade But the implication (innuendo) is → I have not cheated on my wife, he has → I am better → you can trust me → you cannot trust him. Implying he has multiple trades and multiple wives. Words have a plain and ordinary meaning → but words have a sting to it → not just plain and ordinary meaning If you had knowledge of personal facts, and rivalry of them → circle → then you would understand

Answer 12

FACTS: Dog doping girl goes into hiding → stated woman was kidnapped last week by members of gang → and kept in house → plaintiff was mentioned in these atrocious issues → not said he did → but mentioned Evidence → six people have seen him with this girl → and they would imply that they did this to this girl. Was known to be linked with this person → WAS THIS ENOUGH COURT: Jury found for plaintiff CA: Said it should of been withdrawn from jury and looked at nature of article Dog doping is → sophisticated → and can make false assumptions. HOL: Reversed CA: Have to decide if a hypothetical person who knew special facts → would interpret it as defamatory. LORD DONOVAN: When reading this type of article cannot expect high standard of reasonableness. It would have been no defamation if it was Fellow of all Souls → (Highly academic souls) → but the readers of The Sun → Scan headline, and do no careful analysis So ordinary person in that context would interpret it as defamatory. Just a popular newspaper → would assume that they are readers of that type of article. DEFAMATION IN SOCIAL MEDIA (off): Who just looks at headlines and store information Defamatory statements → if you have enough of an antidote May not have an antidote → if vast majority of people would not click into that article → due to changing perception.

Answer 13

Plaintiff must prove that if made to a class → has to defame everyone in that group. WHEN WILL A REFERENCE TO A GROUP BE UNDERSTOOD AS A REFERENCE TO A PLAINTIFF? All people are horrible → too broad All lawyers are sharks → too broad All lawyers in Auckland → too broad All lawyers in Turangi (small town of 3500 people) → Can plaintiff produce evidence to the Court that would help prove that this statement that did not name them → IDENTIFIED THEM → is there any extrinsic evidence or facts that would be given to court to help the plaintiff state that it identifies ME. Small town → only a few lawyers (maybe one or two) → potentially. Or 5 or 6 → if one lawyer in that town was in the news recently → if someone says in light of this article can they say all lawyers are sharks → would a reasonable person assume that that lawyer is a shark? And defamed WILL COME DOWN TO WHAT EVIDENCE THE PLAINTIFF HAS → for example people contact them calling them a shark → If you can narrow it down to only two people → only two lawyers in Turangi → reasonable number of people who know them would think it refers to them. Is calling a lawyer a shark → defamatory? What might indicate that this shark comment is defamatory → if there is an article about how a person was ripped off by this lawyer in Turangi, → and then there is a statement that lawyer is a shark → in that context it is bad. But shark in Court → could be a good thing → or in a different context can mean a bad thing → which is why defamation comes down to the context and is difficult. Is it innuendo? →

Answer 14

FACTS: Member was part of young russia Total membership was 2000 → and Britain branch was 24 Article focussed on young russia in general COURT: Would not construe it as Of concerning the plaintiff.

Answer 15

*Article claimed West Indies cricket team had deliberately lost game. * *Headline “Come on dollar, come on”: * Had the West Indians won on Tuesday they would have played a best-of 5 series against Pakistan. It is estimated that that the West Indies/Australian finals will draw three times the crowds…One was wonder about the collective state of mind of the West Indians. Was it sportingly honest?” * *Clive Lloyd, West Indian captain, brought a defamation action. Come on dollar, come on? Got a lot of controversy.

Answer 16

Was the statement published → because if not → very hard to show that it did harm

Answer 17

Pulman → letter contained defamatory statement → who was it published too → typewriter typed the letter → plaintiff’s clerks → would know to open and look through mail and take it out Very narrow definition →

Answer 18

*Lord Esher – (what is publication?) * *The making known the defamatory matter after it has been written to some person other than the person of whom it is written. If the statement is sent straight to the person of whom it is written, there is no publication of it… * *Lopes LJ – * *[Publication is] The communication of the defamatory matter to a third person. * *The defendants placed the letter out of their own control, and took no means to prevent its being opened by the plaintiffs' clerks. In my opinion, therefore, there was a publication of the letter, not only to the type-writer, but also to the clerks of the plaintiffs' firm. (sic) Publication is easy → published to one other person only Typewriter and Clerk Lord Esher → if written and sent straight to person → then no publication Publication to letter to typewriter → and plaintiff’s clerks → if you took no means to prevent the publication where they believe you should have → this can also be publication WHY DOES IT MATTER HOW MANY PEOPLE IT IS PUBLISHED TOO? Defendant’s typewriter → also been published to Clerks. Can spread quite quickly → The amount of damages.

Answer 19

*Who can be sued? – the “chain of publication” The more people who have read it → the more harm. → and the more damages Anyone in the chain of publication can be sued.

Answer 20

"chain of publication": - Author of Statement, Publisher of Statement, Person who repeats or republished statement - Source -> Journalist who writes story based on source -> Editor/sub-editor -> Printer (If independent) -> newspaper, eg. NZ Herald

Answer 21

*Recall – all those involved in the dissemination (the “act of spreading”) of the defamatory statement. * *If you disseminate a defamatory statement you do not know about you can be liable – (but could rely on an innocent dissemination defence – will come back to in defences!) * *Does that involve an active duty to remove defamatory material? All those involved in dissemination of information. What if you refuse to remove something? → is that publication?

Answer 22

Not controversial to say → if you actively publish something → you have done an act. What if you refuse to remove something? Publication?

Answer 23

*Hellar v Bianco 244 P 2d 757 (Cal Dist Ct App 1952) *Owner of tavern informed of a defamatory statement on the wall of bathroom. *Failed to remove it. *Held? * *Cf. Byrne v Deane [1937] 1 KB 818 (CA) *Anonymous statements on wall of golf club. *Wall was for notices, but club’s rules said no notices to be posted without club’s consent. *Defendants (proprietors and secretary of club) saw notice but failed to remove it. *Held? Cases where Court has said if it is reasonable to do so → if your property → then can create a duty to remove it → because reasonable person assume that you remove it → or you agree with that statement. If defamatory statement about chancellor → it could be reasonably interpreted that i support it and by admission disseminating it. In limited circumstances where you have the means, and on your property, and not onerous too → then can be tried for it.

Answer 24

FACTS: Student magazine made a number of defamatory comments about a Waikato professor Settled with editor and co-editor Printer held liable Settled with students → then decided to go to the printer. → because more assets.

Answer 25

Emmens v Pottle: Man can carry a newspaper (news vendor) → is a publisher → but must rely on the innocent dissemination defence If it is reasonable to assume that there was defamatory statements made they can be liable

Answer 26

FACTS: Did not know it was defamation → Printer → but knew enough that they weren’t innocent disseminaters.

Answer 27

FACTS: Wishart author of breaking silence → written about death of Kahui Twins Murray started fb page called boycott the mascyna book → used twitter page to publicise facebook page COURT: STATED THAT THE COMMENT WAS NOT DEFAMATORY BUT: Because facebook page people can comment on it Said that he should be liable for third party comments made on his post Made a controversial topic → more publicity and bad comments Was it arguable that he was the publisher of all these third party comments He was the publisher of fb and twitter All the additional comments → is he a publisher of them IF you say post your comments here → you may have more liability People commenting had their names on the comments Blocked users who posted clearly defamatory comments Quarter million comments were made Holding someone liable for that many is problematic HC: Held he was a publisher → will be held as publishers if it is defamatory and fails to remove it after a certain point of time If you know, or ought to know then yes CA: Disagreed → very wide test Actual knowledge is fine → they ought to know it is too broad → Harmgful Digitla communications act 2015 REASONING: Held graffiti analogy not useful → not intending that wall used for messages → public meeting more useful analogy In the meeting if he said thats a great comment → but not held liable for hosting the meeting. Held that → if you know there is defamatory statements and you fail to take them down them potentially but you don’t ought to know it. Quarter of a million → cannot review all of them → very difficult. To say you ought to know what it is? → is hard because it is difficult to know what is defamatory and what is not.

Answer 28

Very difficult to understand what the state of the law is. Some early indications Material is published online → Dow jones v Gutnick → in the jurisdiction where the material is downloaded How do you prove publication? Unclear - but can infer publication on popular, readily accessible websites

Answer 29

*This section has considered the first of our 3Ds – was the publication defamatory of the plaintiff? *There are three elements to consider: *was the statement defamatory, *did it identify the plaintiff, and *was it published to a third party. *These elements are very broad – there is no need to show fault, malice, intention or even that the statement was false. *This means that there is a big role to play for defences! *But first, briefly consider remedies for defamation. Don’t need to show malice or fault

Answer 30

Injunctions, damages, others Injunction: Two types: Interim → stops publication while court case is ongoing, whilst we determine whether or not it is defamatory → why would you want an injunction? You stop the harm from occurring → most people don't want that statement up → if they can get an injunction stopping it → won't be published.’ *To prevent publication or continuance of publication. Why is this important? * *Orthodox principles for grant of interim (interlocutory) injunction:* * *A serious question to be tried; * *Balance of convenience favours the grant of the interim injunction; and * *Overall justice of the case also favours the grant. * *Merits of case can be taken into account in all elements. *See Brooks Homes Ltd v NZ Tax Refunds Ltd [2013] NZSC 60 at [6] – slight departure from older American Cyanamid Co v Ethicon Ltd [1975] AC 396.

Answer 31

The rule in Bonnard v Perryman [1891] 2 Ch 269: * *An interim injunction ought not to be granted except in the clearest cases. * *Will not be granted if defendant intends to mount a defence (unless defence hopeless). * *Rationale for rule? *TV3 Network Services v Fahey * *Restraint only when there is clear and compelling reasons. * *No reasonable possibility of defence. * *Freedom of media, and freedom of speech, reinforced by s 14 of BORA. Only allowed in clear and compelling cases where not able for a defence to be raised.

Answer 32

*Usual remedy. * *General compensatory damages – restore the plaintiff to the position he or she would have been in if the defamation had not occurred. * *Exemplary or punitive damages – to punish and deter - where defendant “has acted in flagrant disregard of the rights of the plaintiff” (s 28 of Defamation Act 1992). More people → more harm → more damages

Answer 33

*Described as a “solatium” or “consolation” for injury. Ongoing concerns with – particularly juries – awarding inappropriately high damages * *John v MGN Ltd principles relevant to award of compensatory damages. * *'Elton's "diet of death"'. The star, who suffered from the eating disorder bulimia, has told friends in America: "I am on the 'Don't swallow and get thin diet' and I can tell you it works. I have got the best of both worlds. I get the flavour without becoming a blimp.“ * *Jury’s award of $350,000 USD decreased to $25,000 USD Undo the harm → already reduced reputation.

Answer 34

*Fixed by the jury *Cf. Williams v Craig Williams awarded $1.27 million the highest ever (and the total Williams asked for). * *Mr. Craig successfully applied to set aside the jury’s verdicts and damage award. * *Katz J’s decision was appealed by Williams. * *The Supreme Court has recently delivered its (split: 3:2) decision on a retrial for liability and quantum of damages. * *NZ awards generally modest: * *Korda Mentha v Siemer $825,000 for what was described (by Court of Appeal) as the worst case of defamation in the British Commonwealth. *Note: HC decision in Craig v McGregor: $400,000 *Defamation Act, Section 28: * *Punitive (or exemplary) damages may be awarded against a defendant only where that defendant has acted in flagrant disregard of the rights of the plaintiff. * *Such awards are rare.

Answer 35

*Defamation Act, Section 29: Factors in mitigation - * *Retraction or apology published. * *Explanation published. * *Delay for which the plaintiff was responsible. * *Section 30: Defendant may prove in mitigation of damages that the plaintiff has bad reputation. See Mihaka v Wellington Publishing - $3,200 not $5,000.

Answer 36

*Defamation Act, Section 24: Declaration (and solicitor and client costs). * *Defamation Act, Section 25: Retraction (for news media) (and solicitor and client costs). * *Defamation Act, Section 26: Correction (and solicitor and client costs) * *Solicitor and client costs = fixed scale for reasonable legal fees.

Answer 37

*Court suggested apology under s 26: * *Mrs and Mr Leov acknowledged that the statements of the kind referred to above were not true and made without any proper basis. They withdraw the statements and they apologise for the damage they have done to Mrs Newton. They accept the actions of Mrs Newton about which they had complained were the reasonable and proper actions of a school [P]rincipal with management responsibilities. [sic]. * *Being appealed.

Answer 38

*Limitation Act 2010, Section 15: * *No action if proceedings filed more than 2 years from the date of “the act” on which defamation claim is based. * *Why is this? Significantly less than standard limitation periods for tort law?

Answer 39

*Question 1: Is there a prima facie defamation cause of action? Revision: What elements do we need to show? *Question 2: Is there an applicable defence? *Yes, claim is not successful *No, the claim is successful (and consider remedies) You do not have to show intention, and many other elements which defences will cover to ensure that we strike a balance between fundamental rights and defamation. DEFENCES RATIONALE: When you have a cause of action for defamation → is there prima facie defamation? → if you can show all the elements then you have a prima facie defamation. For example: wax museum sued for defaming caricature. Defamatory statement that does not need to be words. Publication/identification → anyone outside (one other person apart from the plaintiff) Once you have proven those elements → then you see if there is an applicable defence If there is truth or honest opinion then no defence If defence is successful → then no prima facie successful cause of action Then consider the remedies

Answer 40

Truth,Honest Opinion, Absolute Privilege, Qualified Privilege, Responsible Communication in the Public Interest Innocent Dissemination and Consent Statutory Qualified Privilege, Common Law Qualified Privilege

Answer 41

*Defence at common law for newspaper vendors if they were able to establish they did not know and were not negligent (Emmens v Pottle (1885) 16 QBD 354 (CA)). *Defence did not extend to printers (Jensen v Clark [1982] 2 NZLR 268 (HC)). *BUT now s 21 of the Defamation Act 1992. *For processor (printer) or distributor (librarian, bookseller – maybe even ISP). Republication for example → and internet publications Now under s21 → but was a defence in common law previously → limited to newspaper vendors, if they did not know and were not negligent Newspaper on the wall → shows headlines → if headline was defamatory → arguably republicising it because people can walk past and see the defamatory statement Provided that they did not know → or did not have reasonable grounds to know then there would be a defence there → but if they knew there was a defamatory statement then NO DEFENCE Did not extend to printers → could not use common law defence NOW WE HAVE s21

Answer 42

21 Innocent dissemination In any proceedings for defamation against any person who has published the matter that is the subject of the proceedings solely in the capacity of, or as the employee or agent of, a processor or a distributor, it is a defence if that person alleges and proves— (a) that that person did not know that the matter contained the material that is alleged to be defamatory; and (b) that that person did not know that the matter was of a character likely to contain material of a defamatory nature; and (c) that that person’s lack of knowledge was not due to any negligence on that person’s part. Highlights for any proceeding in defamation → processor, distributor, or agent or employee Did not know that the matter is defamatory Did not know the matter was likely contain material of defamatory nature Lack of knowledge was not due to any negligence on the person’s part. Have to act like a reasonable printer or processor would act

Answer 43

Truth Defamation Act 1992 8 Truth (1) In proceedings for defamation, the defence known before the commencement of this Act as the defence of justification shall, after the commencement of this Act, be known as the defence of truth. (2) In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication. There is no element to show statement is false → STILL HAVE TO GO THROUGH PROCESS Truth is a defence → that means you have to go through the elements → marks are given for going through the processes (3) In proceedings for defamation, a defence of truth shall succeed if— (a) the defendant proves that the imputations contained in the matter that is the subject of the proceedings were true, or not materially different from the truth; or (b) where the proceedings are based on all or any of the matter contained in a publication, the defendant proves that the publication taken as a whole was in substance true, or was in substance not materially different from the truth. Codified under 1992 Act Defence known as the defence of justification (truth) → after this is known as Truth defence (2) → (3) → in proceedings for defamation, shall succeed → if that matter is true or not materially different from the truth → publication as a whole was true or not materially different from the truth These don’t say every single thing needs to be truth → just not materially different from the truth First lecture → potential defamation claim if for example destroyed 10 hectares but only destroyed 5 hectares → one technical difference meant that even though that specific fact isn’t true → it is still materially truthful → still destroying hectares in a materially truthful way. Regardless of the intricacies. Big companies with well paid lawyers can mitigate any claims → would be big weapon to silence arguments against them Needs to be seen in this balance of not having needless destruction of people’s actions But need to hold people accountable Balancing this → truth defence → no need for 100% accuracy → just not materially different from the truth Look for tiny differences → but dont get caught up because it is not materially different. *The rationale for the defence of truth “… is simply that a person is entitled only to the reputation his or her behaviour deserves”: Stephen Todd (ed) The Law of Torts in New Zealand (9th ed, Thomson Reuters, Wellington, 2023) at [16.9]. *The defence used to be called “justification”. *Recall that a plaintiff need not prove the statement was false. *However, defendant will have a complete defence if he or she proves the truth of allegedly defamatory statement. *Sometimes proving this can be difficult by legally admissible evidence. *The truth defence is often pleaded at the same time as honest opinion (i.e. a genuine commentary based on true facts). Only to their just desserts → Do not need to prove statement is false → complete defence if they prove the truth of the allegedly defamatory statement Criticism → burden not on plaintiff to prove the statement is wrong, it is on defendant to prove it is the truth Historic information → can be difficult → one party saying that is false, and one party saying it is true, no evidence to prove, then defence will fail Burden of proof on the defendant Power in person suing Truth defence → unless clear evidence → pleaded at same time as honest opinion usually You can say it is your honest opinion that it was truthful

Answer 44

*The focus is on proving the truth of the substance or “sting” of the defamation. *Need to prove truth in literal meaning but also innuendo/imputation. E.g. “JOHN SMITH IS BEING INVESTIGATED FOR FRAUD” - if the context infers John Smith is guilty of fraud: *Not enough to prove investigation is taking place – but also must prove that the inference is true. *But defence will not fail if defendant gets a minor detail wrong that is immaterial to the injury to the plaintiff’s reputation. The focus is on materiality / the substance of the defamatory words. *Recall Mihaka v Wellington Publishing Co (1972) Ltd [1975] 1 NZLR 10 (SC) (truth not pleaded) – standard of accuracy is high. *‘Spent most of the last 15 years in jail’ … only spent a year but did have more than 30 convictions Focus on proving the sting → defamatory statement, → harmful aspect was truthful → for example: shell killing rainforests → said headquarters in British Virgin Islands to avoid tax → the sting is that they are avoiding tax → shell is unlikely to say they got the country wrong The sting → the harmful part is not the country → the harmful part is you are avoiding tax Avoiding tax in another country → avoiding tax is harmful → is the harmful part truthful? Balancing freedom of expression with defamation → cannot say no truth if the harmful part is not true → there is truth in the harmful part. Need to prove truth in literal meaning but also the harm that comes from it → cannot say that the plain and ordinary meaning is truthful if hiding behind innuendo → is the innuendo truthful? Defence will not fail if minor detail wrong → especially if it is immaterial to the plaintiff’s reputation It is based on the substance of the defamatory statement High standard of accuracy MIHAKA V WELLINGTON: Defamatory statement is spent most of the last 15 years in jail Had 30 convictions → were in the Courts → but not in jail Only spent 1 year in jail Court said that is not materially the same Being hauled up in a conviction is not the same as being in prison The assumption is they are minor convictions 15 years in jail is serious conviction Did not meet the defence of truth The defence of truth was not pleaded but judge did make comments about difference in obiter

Answer 45

*Compare: *Statement that car dealer wound back odometers on imported cars vs fact that the car dealer knowingly sold imported cars wound back by someone else (Pepi Holdings Ltd v BMW New Zealand Ltd CA21/97, 25 August 1997). *Statement that barrister had been struck off “for some shoddy financial legal advice” vs fact barrister was struck off for failure to keep proper trust account records, failure to distinguish between personal interest and professional role as barrister (Kriss v John Fairfax Publications Pty Ltd [2007] NSWSC 830). Obligations to other people: can watch a baby drown and be fine tortiously No obligation to do something In defamation and consumer protection → can argue there is difference Barrister struck off for bad financial legal advice vs fact barrister was struct off for failure to keep proper trust accounts Shoddy legal advice → is giving incorrect advice, and the other is omission is doing nothing If the sting of the defamation is that you provided shoddy legal advice.

Answer 46

*A defendant can deny that the words used are capable of bearing the meanings alleged by the plaintiff or the defendant can prove that the meanings alleged are substantially true. *BUT a defendant cannot plead words have a different meaning and attempt to prove the truth of alternative meanings (TVNZ v Haines [2006] 2 NZLR 433 (CA)). *Note: English and Australian courts take different approaches to this issue. Not about intention Not believable in the context → not about intention Cannot prove that words have different meanings to those that objective reasonable person would believe when coming across that meaning Could try to prove not defamatory because in context it was a positive review If it was → that lawyer was a shark in the courtroom, compared to that lawyer is untrustworthy they are a shark.

Answer 47

*Templeton v Jones [1984] 1 NZLR 448 (CA) *Facts: *Hugh Templeton - Minister in National Government. *Sir Robert Jones, started NZ party in 1983, to challenge Muldoon’s (National) Government. *Jones challenged Templeton for the Ohariu electorate. *At meeting Templeton called Jones a man who despised: “Bureaucrats, civil servants, politicians, women, Jews and professionals”. *Jones only sued on the “Jews” statement. *Templeton v Jones [1984] 1 NZLR 448 (CA) *Issue: Was the defendant able to plead evidence that the plaintiff did hate bureaucrats, women, and lawyers? *Holding: No. *Reasoning: The defendant's particulars of justification must be limited to those matters of which the plaintiff had complained. It was no excuse for making discreditable statements about a plaintiff which were false that the defendant had also made other discreditable statements about him which might be true. Hugh templeton Minister of national Robert jones challenged national Going at each other in electroarate Templeton called Jones a man who despised many groups Jones only sued for the jews statement They probably had a defence of truth for the other statements They would avoid all of that to not show that i have said anything to jews Could defendant prove that the comment as a whole was truthful. Court said no Particulars must be limited to the matters complained of by the plaintiff If complained by all the things → could show materially all the substance was the same → lawyers, civil servants, women Only pleaded for jews statement Could only be provied to jews statement

Answer 48

*Note: Today, the “pick and choose” rule has been overturned by s 8(2) of Defamation Act 1992. But would Templeton v Jones be decided differently today? Would it not be materially different from the truth? *(2) In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication. Defendant may allege and prove facts in the entire publication → tiny little defamatory sting is not materially important enough There is an overall defence of truth Different from Templeton → only provide evidence for particular defamatory statement If you could prove all the other harmful things → according to this act. The sting is that he is hateful generally. Many people do not like lawyers, women etc. Despising women was not seen as controversial back in the day But could say he is a hateful person in general but some forms of hate are a lot worse Even if you can prove that → antisemitism is enough.

Answer 49

*Talley's Group Ltd v Television New Zealand Ltd [2023] NZHC 696 *Facts: The defendant ran a programme on the (allegedly unsafe) working conditions at the plaintiff companies. *Issue: Should the Court strike out parts of the defendants’ pleading relating to a defence of truth for disclosing no reasonably arguable defence? *Holding: No. *Reasoning: It was reasonably arguable that the pleaded particulars were capable of establishing the substantial truth of the pleaded imputations. However, there were parts of the truth pleading that fell short. As to contextual truth (i.e. substantially true / not materially different from the truth), this too was reasonably arguable and should not be struck out. The Court explained that in such circumstances the effect of the contextual allegations must be to ‘swamp’ the effect of the reputations sued upon. That is, the overall ‘sting’ of the publication must be true. TALLEYS: Ran programme on unsafe conditions at plaintiffs companies Should the court strike out parts of the defendants pleading relating to a defence of truth for disclosing no reasonably arguable defence COURT SAID NO Even if you cant prove all the actual elements Effect of contextual allegations → Some of the elements of truth are not correct → that is not enough to not plead it.

Answer 50

Defamation Act 1992 9 Honest opinion In proceedings for defamation, the defence known before the commencement of this Act as the defence of fair comment shall, after the commencement of this Act, be known as the defence of honest opinion. 10 Opinion must be genuine (1) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is the author of the matter containing the opinion shall fail unless the defendant proves that the opinion expressed was the defendant’s genuine opinion. (2) In any proceedings for defamation in respect of matter that includes or consists of an expression of opinion, a defence of honest opinion by a defendant who is not the author of the matter containing the opinion shall fail unless,— (a) where the author of the matter containing the opinion was, at the time of the publication of that matter, an employee or agent of the defendant, the defendant proves that— (i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant; and (ii) the defendant believed that the opinion was the genuine opinion of the author of the matter containing the opinion: (b) where the author of the matter containing the opinion was not an employee or agent of the defendant at the time of the publication of that matter, the defendant proves that— (i) the opinion, in its context and in the circumstances of the publication of the matter that is the subject of the proceedings, did not purport to be the opinion of the defendant or of any employee or agent of the defendant; and (ii) the defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the author of the matter containing the opinion. (3) A defence of honest opinion shall not fail because the defendant was motivated by malice. *Used to be called “Fair Comment”. *The main idea is that an individual is entitled to express an opinion on something – no matter how unusual, damaging or extreme. Provided: *The opinion is based on facts; *The speaker/writer has their facts right; and *The opinion is a genuine one. Section 9 → in proceedings for defamation, fair comment changed to honest opinion Fair comment still exists but called honest opinion 10 → need to show not a fake opinion just genuine opinion that you held, a defence of honest opinion. Ss3 → defence shall not fail if they are motivated by malice → as long as you held it honestly you can vocalise your honest opinion even if it is malicious → if you didn’t actually think that → but just pretending you did → then it will fail → the emphasis is on did you genuinely hold it. How can you tell it is honest opinion → evidence to show it is honest opinion Main idea behind common law defence → no matter how extreme the opinion is → they can only do this if opinion is based on facts → speaker has facts right It is in factual honest opinion

Answer 51

*There needs to be a substratum of facts available to the public (i.e. in public domain). The reader must be able to assess the commentator’s opinion against facts and compare it with their own. *Published/distributed plays, books, films, music usually sufficiently public. *If facts not in public domain, writer should spell out the facts before expressing opinion. Honest opinion cannot be brought out of thin air There needs ot be a substratum of facts available to the public ( in public domain) Cannot wake up and say you hate someone Must be sufficiently publicly available If not publicly available Burden on person claiming honest opinion → need to prove requirements of fact But if it was a scientific study → then it is a sufficient fact to justify an opinion Facts must be true to the same extent as the truth defence,

Answer 52

*You cannot criticise someone for something they did not do. *Merivale v Carson (1887) 20 QBD 275 (CA) *Facts: A theatre newspaper published criticism of the play “The Whip-Hand” involving a “hash-up of ingredients” including a “naughty wife and her double existence”. *Issue: Did this involve “fair comment”? Wont look at microscopic detail → only show overally they were not materially different from the truth MERIVALE: A theatre newspaper → involving a hash up → including naughty wife and her double existence No adultery in the play Cannot criticise the play Would a fair person say → you can say you didnt like the play → honest opinion But in this case → these comments → naughty wife could pick up adultery. Facts showing that there

Answer 53

*Question 1: Is there a prima facie defamation cause of action? Revision: What elements do we need to show? *Question 2: Is there an applicable defence? *Yes, claim is not successful *No, the claim is successful (and consider remedies) The first question is → prima facie defamation. Elements → Has to be defamatory in nature → Statement Clearly identify the plaintiff And published to at least one other person that is not the plaintiff Once established → Look at defences The burden of proof is on the plaintiff → they have to show whether there is prima facie defamation Defence → question 2 → on defence to show on balance of probabilities. If one of the defences apply → the claim is not successful → no damages whatsoever There is no apportionment → do damages awarded if defence If no defence → the plaintiff wins → then plead what damages they want → declaration, damages etc.

Answer 54

*Section 11 of Defamation Act 1992: If the publication consists of statements of fact and partly of statements of opinion – honest opinion defence will not fail merely because the defendant does not prove the truth of every statement of fact. *Question is whether the opinion is genuine having regard to the facts that are true or not materially different from the truth. The facts must be sufficient to justify the comment. *Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 (PC) – fact that 150 people left a meeting rather than 200 people immaterial to opinion. HONEST OPINION: First defence → truth → statement was defamatory but it was truthful → cant sue for telling the truth SEcond → honest opinion → my genuine opinion → my personal opinion → i should have a defence Common law aspect → and also a statutory test. If publication consists of statement of facts and little bit of untrue statements → do not have to prove the truth of every statement → just materially truthful. CAN YOU STILL RELY ON HONEST OPINION → In some circumstances yes → is it genuine having regard to the facts that are true, and facts that are materially true → if all of them are substantially untruthful → cannot say it is honest opinion based on untrue facts GOH CHOK → 150 people left instead of 200 people → immaterial. → still honest.

Answer 55

*It must appear to a reasonable person that author is presenting his or her comment or opinion on facts and not putting forward a fact. *The question whether words are capable of being opinion is initially one for the judge (then it is up to jury to decide whether in the circumstances, they were opinion). Must appear to a reasonable person that author is presenting his or her comment or opinion → someone can say: “in my opinion it is useless to study jurisprudence and should study the real law” → cannot justify what is not a fact by saying it is your opinion Hard to defend by saying it was just my opinion Capable of being an opinion as opposed to a fact covered by an opinion → at the end it is up to the jury to decide whether it was an opinion.

Answer 56

*Section 10(1) of the Defamation Act 1992: Defendant must prove it was his or her genuine opinion. *The opinion need not be fair or reasonable. *Section 10(3): A defence of honest opinion shall not fail because the defendant was motivated by malice. *The existence of malice, though, may cast doubt on the genuineness of the opinion (so old law still relevant). WAS IT AN OPINION THAT YOU ACTUALLY HELD → Not just fair and reasonable. Difficult to prove in Court Defendant can claim it is their genuine opinion Will look at context → and other opinions → to see whether they are consistent Have they vocalised themselves in other forums, formats? Will have to provide some evidence to show that they genuinely believe this\ Malice is not included → under s10 (3) → will not fail just because the defendant was motivated by malice → but malicious thought may cast doubt on the genuineness of the opinion Rules of malice come in ⇒ but have to have an honest opinion and if they can show malicious intent → will act as evidentiary to see whether that was genuine. Onus on defendant to prove honesty *Onus is on defendant to prove the genuineness of opinion (plaintiff could get benefit of uncertainty). *Plaintiff must give notice of allegation (plus facts that support) that defendant’s opinion not genuine. Some potential factors: *Ulterior motive; *Bad relations between the parties; *Prominence given to the publication; *Highly extravagant language. Did they have any other reason to make that bad opinion? How prominent was publication Ulterior motive Was it extravagant, or an analysis. Opinion does not need to be fair and reasonable → but reasonableness will come in with ulterior motives etc. Defendant can say → it was bad to say → but genuinely believed it → if you can prove that defence will likely succeed.

Answer 57

*Facts: *Very unfavourable book review written by defendant. *There was strained relations between the defendant and the plaintiff before criticism was published and the criticism had been published as a separate article rather than in the book review section. *Issue: Was evidence that the defendant was actuated by malice towards the plaintiff admissible? *Holding: Yes. *Reasoning: *Evidence of malice actuating the defendants was admissible, and that the learned Judge was right in letting the evidence in this case go to the jury. *Given the existence of malice, it must be for the jury to say whether it has warped his judgment. *Comment distorted by malice cannot be fair on the part of the person who makes it. *Proof of malice may take a criticism prima facie outside the right of fair comment, just as it takes a communication prima facie privileged outside the privilege. *Application for new trial or judgment for defendant rejected. CASE OF BRADBURY Unfavourable book review by defendant Relo between both parties Criticism published as separate article from the book review section WAs not in specific book review → was in a general Was defendant motivated by malice admissible in determining whether it was genuinely held COURT SAID YES → Malice even though not determinative → is relevant to see if it was a genuine belief Did the malice impact or warp the judgement made and the opinion stated? Comment distorted by malice cannot be fair by person who made it Proof of malice → Determined that application for new trial was rejected.

Answer 58

*Awa v Independent News Auckland Ltd [1995] 3 NZLR 701 (HC) *Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 (CA) *Facts: Awa was the Uncle of Billy T James. After Billy T James died, Awa removed the body from his wife citing tikanga and the need to return him to the ancestral marae. A news article described Awa as “Billy’s ‘body snatching’ Uncle”. *Issue: Was this a fair comment? *Holding: Yes. *Reasoning: *HC holding: Statements were comment because of quotation marks around “body snatching” and article then stated essential facts. *CA (majority) holding: *“The insensitivity of the comment does not deprive it of that protection if made honestly.” *Thomas J agreed but condemned the lack of cultural understanding and that the courts should not be endorsing racially insensitive comments. Removed the body of his wife → to return to marae Article → billys body snatching uncle Court said it was fair comment → but quite critical HC focussed analysis on “body snatching” in quotation marks Fact that body snatching comment paired up with article that stated the essential facts Dont just look at the title → look at article as a whole → reasonable reader (CHARLESTON) Sufficient to have a defence CA → racial insensitivity, not understanding culture But made honestly Comments we don't want people to make → but if they don't meet requirements they are left open States that it does not cover racially insensitive or culturally insensitive comments.

Answer 59

*The problem is that person being sued is not the person expressing the opinion. *Situation one: where the author was an employee or agent. *Section 10(2)(a): Defence will fail unless defendant proves: *Opinion did not purport, in the circumstances, to be opinion of defendant. *Defendant believed opinion to be genuine opinion of author. *Cf. Disclaimers, labelling of pieces as “opinion”. *Situation two: where the author is not an employee (i.e., letter to the editor). *Section 10(2)(b): Defence will fail unless defendant proves: *The opinion did not purport, in the circumstances, to be opinion of defendant. *Defendant had no reasonable cause to believe that the opinion was not the genuine opinion of the writer. *Cf. NZ Herald requirements for letters to the editor, address, etc. Often have a defamatory statement made by someone but published by newspaper When we have honest opinion defence Person suing is not the person expressing the opinion Was not newspapers opinion They don't know whether it was honest or not SEction 10 (2) (a) → repeating statements and saying this is their opinion will be enough → stating “their opinion was” → affirming that they believe it was the genuine statement of the defendant Letter to editor for example: → Often requirements for person Or wont put letters to editors → that pretends to be an opinion but is masked as a defamatory statement.

Answer 60

*Absolute privilege – complete protection. Even if statement was dishonest or knowingly false. *Qualified privilege – can be lost if statement made with ill or to take improper advantage of the occasion. *Key point: these defences apply where statement is both defamatory and untrue. Cf. the balance struck by defamation law. Absolute → protected under all circumstances → even if you make statement knowing it is false Parts of society where we say you can say whatever you want Qualified → start from place that it is privileged → and defence against defamatory statements But if you act improperly you lose that protection Keep defence as long as you act properly Absolute → can act however you want and still be protected Apply when statement is both defamatory and untrue Done three elements → and truth defence does not apply

Answer 61

*These next defences are complicated *Combination of statute and common law rules *But there is a shared theme of parliamentary proceedings, statutory bodies, courts etc. *Why do we have special rules for these types of communications? Why is absolute privilege given Shared theme → these privileges were in parliamentary proceedings, statutory bodies, Courts etc. What is special in these situations? → difficult regime of tort law defences Why are they permitted in these circumstances? If there is an issue that needs to be dealt with → need to express full extent → fully scrutinise Parliamentary privilege → important because it will always infringe on freedom of speech → we want freedom of speech given completely in the seat of democracy People who decide our laws and governing → need to debate to the full extent Without worrying about being accused of dishonest motives → if doing that in the process of democracy. COURT SYSTEM → Airing dirty laundry → difficult situation, and people are making accusations against each other → people in stand. → affidavit for example. One party can win → and the other party can counter sue for defamation Who can be responsible for publishing a defamatory statement → everyone who published it can be liable The Judge could be sued → for publishing a statement that contained a defamatory statement Would fundamentally undermine the judiciary Important for sake of democracy and rule of law → fundamental concepts → we have situation where people can speak freely and republish things when necessary Balancing → just because politician has said that in Court → for example: if statement is defamatory in untrue → would be going too far → absolute privilege in certain circumstances. And there is Qualified privilege → can lose absolute privilege

Answer 62

*Defamation Act 1992 *13 Absolute privilege in relation to proceedings in Parliament *14 Absolute privilege in relation to judicial proceedings and other legal matters *15 Other rules of law relating to absolute privilege not affected Section 13 → absolute privilege for parliamentary proceedings → can say anything about anyone with any malice or knowledge and will be absolutely ok Court → lawyers making claims Judges → publishing judgements → have absolute privilege Section 15 → other rules of law not affected

Answer 63

*Parliamentary privilege harks back to Bill of Rights Act 1688, art 9: *“That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament”. *Rationale: Prebble v TVNZ [1994] 3 NZLR 1 (PC) at 8: *Speaker “at the time he speaks is not inhibited from stating fully and freely what he has to say”. *Now see Parliamentary Privileges Act 2014 – alters the law in some important respects. Historically BOR 1688 → rationale → discussed in Prebble PREBBLE → the speaker at the time he speaks is not inhibited from freely stating what he has to say Defamation Act → with parliamentary privileges Act → intersect. *Used to be the law that privilege will not protect a speaker who repeats or effectively repeats what was said in Parliament. *Jennings v Buchanan [2004] UKPC 36, [2005] 2 NZLR 577 *Facts: *J made defamatory statement about B in Parliament (misusing public money to pursue an affair). *In a subsequent interview with a newspaper J said “he does not resile from” his statement. *Issue: Were J’s comments covered by parliamentary privilege? Were J’s comments outside Parliament an effective repetition? Privilege will not protect anyone who repeats it and effectively repeats it outside of parliament One politician may make a defamatory statement → and say it outside of parliament → If you believe it is true say it outside of parliament → if they don’t → parliamentarian can say they are afraid of repeating that But that does not work here → Act → extends the right

Answer 64

*Holding: J’s comments were an effective repetition. *Reasoning: There was a reassertion of the defamatory statement outside of Parliament which meant that B could sue. *This means that if a court considers a speaker to be effectively repeating what was said in a parliamentary proceeding, the proceeding itself could become evidence to support legal proceedings. Jennings in newspaper said he does not deny statement He said he does not take his comment back COurt → in light of act → was Jennings comments covered? Outside Parliament → was it an effective repetition Court → was an effective repetition The same statement → meant they could sue So if Court believes it to be effectively repeated → could become evidence to support legal proceedings.

Answer 65

*Abolishes and prohibits evidence being offered or received, questions being asked, or statements, submissions, or comments made, concerning proceedings in Parliament, to inform or support “effective repetition” claims and liabilities in proceedings. *See s 3(2)(d) and ss 11-12. *For further information see Select Committee Report Parliamentary Privilege Bill (179-2) *Discussed further later! Amended approach under the common law

Answer 66

*Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 (PC) *Facts: *Prebble alleged “Frontline” current affairs programme had claimed he was involved in a conspiracy of business leaders and public officials related to the sale of state assets (SOE Minister). *TVNZ pleaded defences including truth and honest opinion and wanted to rely on speeches, reports, announcements or actions within the umbrella of proceedings of Parliament. *TVNZ wanted to use what was said in Parliament as a “shield”, not as a “sword”. *Issue: Could TVNZ rely on speeches, reports, announcements or actions within the umbrella of proceedings of Parliament? PREBBLE Alleged he was involved in conspiracy Defence plead truth and honest opinion Relied on speeches, reports, announcements or actions within umbrella of proceedings of parliament They wanted to say they were either truthful or honest opinion based on information in Parliament Can they use evidence from Parliament to help their defence.

Answer 67

*Holding: Sort of. The Privy Council held that the proposed use of materials would breach parliamentary privilege but that Hansard could be used to prove what was done and said in Parliament as historical record and no stay should be granted. *Reasoning: *The important public interest protected by such privilege was to ensure that the member or witness at the time he speaks was not inhibited from stating fully and freely. If there were any exceptions, at the time of speaking in Parliament the member would not know whether they would subsequently be challenged. CAN IN CERTAIN CIRCUMSTANCES - Hansard → could be used to show it as a historical record Could refer directly Or refer to the historical record in Hansard Reasoning → important public interest → member not inhibited from stating fully and clearly They should know there was a record kept *To suggest lying to the House could lead to exactly that conflict which the wider principle of non-intervention was designed to avoid. *However, the burden of the defamation alleged related to acts done by members of the Government out of the House to which questions of parliamentary privilege had no application. No stay was needed. *In short, Hansard can be produced as a matter of historical record – e.g. that the Minister said “xyz” in the House. But cannot be “used to suggest words were improperly spoken or the statute passed to achieve an improper purpose”. If you allow direct proceedings used → could undermine absolute privilege Burden → of defamation → related to acts done by members out of the house Hansard can be produced as matter of historical record → minister said particular thing Cannot say it was improperly said → cannot use it for potentially defamatory statement → but can use it as evidence of what was said to support truth or honest opinion defences → as long as it DOES NOT UNDERMINE ABSOLUTE PRIVILEGE>

Answer 68

*Attorney-General v Leigh [2011] NZSC 106 *Facts: *G briefed M orally and in writing to help him answer a question in Parliament about L’s termination of employment. *L issued defamation proceedings against G (that M made defamatory statements). *Issue: Was G protected by parliamentary privilege? Discussed in AG v Leigh G briefed M orally To help answer a question in Parliament about Ls termination of employment L issue defamation against G Was G who Briefed M protected by parliamentary privilege Questions in parliament protected → how about documents before → pre documents COURT SAID NO → were not proitected → but protected by qualified privilege NECESSITY TEST → is it truly necessary for the functioning of parliament Said no → only thing in parliament Lower version → qualified privilege

Answer 69

*Holding: No. *Reasoning: *Public servants assisting Ministers to answer Parliamentary questions were not protected by absolute privilege against claims for defamation (but they are protected by qualified privilege). *Used a necessity test – is absolute privilege in this circumstances truly necessary for the proper and effective functioning of Parliament?

Answer 70

*Kiwi Party Inc v Attorney-General [2020] NZCA 80, [2020] 2 NZLR 224 *[37] The Parliamentary Privilege Act was prompted by concerns about aspects of the Supreme Court’s judgment in Attorney-General v Leigh ([2011] NZSC 106, [2012] 2 NZLR 713). In particular, it was thought the Supreme Court’s decision unduly restricted parliamentary privilege. The legislature responded by passing the Parliamentary Privilege Act “to restore” the scope of parliamentary privilege and to align the law of parliamentary privilege in New Zealand with comparable commonwealth jurisdictions. Though AG v Leigh → restricted parliament → unduly restricted parliamentary privilege Legislature thought they got the balancing wrong Then submitted parliamentary privileges ACt To restore

Answer 71

10 Proceedings in Parliament defined (1) Proceedings in Parliament, for the purposes of Article 9 of the Bill of Rights 1688, and for the purposes of this Act, means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee. (2) The definition in subsection (1) must be taken to include the following: (a) the giving of evidence (and the evidence so given) before the House or a committee: (b) the presentation or submission of a document to the House or a committee: (c) the preparation of a document for purposes of or incidental to the transacting of any business of the House or of a committee: (d) the formulation, making, or communication of a document, under the House’s or a committee’s authority (and the document so formulated, made, or communicated): (e) any proceedings deemed by an enactment to be ... for those purposes proceedings in Parliament. Given a very wide definition Not just what was said in Parliament Giving of evidence, submission of document Incidental to business in House Formation of document etc. Anything you do to prepare → both in the house and in a committee covered 11 Facts, liability, and judgments or orders In proceedings in a court or tribunal, evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament, by way of, or for the purpose of, all or any of the following: (a) questioning or relying on the truth, motive, intention, or good faith of anything forming part of those proceedings in Parliament: (b) otherwise questioning or establishing the credibility, motive, intention, or good faith of any person: (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament: (d) proving or disproving, or tending to prove or disprove, any fact necessary for, or incidental to, establishing any liability: (e) resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings In proceedings… Basically anything to do with the Court Consider in Staples

Answer 72

*Facts: Facebooks posts were made and material was provided to Winston Peters who used it to make a speech in the House. It was then reported on by Campbell Live programme. *Issue: What was the effect of the new Act? *Holding: The Act had broadened the scope of parliamentary privilege. Facebook post made And were used by Winston as a speech in House It was then reported on by Campbell Live programme Initial post, Winston using it in house, and reported by Campbell What was the effect of the Act? How did it broaden scope of parliamentary privilege Staples v Freeman *Reasoning: *Words and documents incidental to the business of the House may be protected even if the business is not being, or is never, transacted. *Mr Peters’ speech was self-evidently a “proceeding in Parliament”. *The provision of information by the defendant to Mr Peters was protected by parliamentary privilege. There was a sufficiently “close connection” between the material provided and the speech. *The Court could not accept reliance by Mr Staples on Mr Peters’ speech to either establish liability in defamation or quantum. Nor could he rely on the Campbell Live programme, which appeared to be a fair report. Winston peters speech was a proceeding in parliament Sufficiently close connection between what was written and the speech Could not rely on Campbell Live which gave a correct report ⇒ fair report (qualified privilege) Anything said within those particular circles are protected → absolute privilege Even if repeated by someone after parliament → as it would undermine absolute privilege Undermine fact that it was said in Court → as piece of evidence → can rely on Hansard as a shield against Defamation claims → only as defence not claim. QUALIFIED PRIVILEGE Have defence but can lose it → have absolute but can lose it Absolute → completely have it → cannot be sued.

Answer 73

*Anything said, written or said in judicial proceedings. *See: Defamation Act 1992, s 14(1) – including tribunals or authorities that have a duty to act judicially. *See: Defamation Act 1992, s 14(2) lawyer-client privilege.

Answer 74

*Defamation Act 1992, s 16 – *Matters in Part 1 of schedule 1 are protected by qualified privilege. E.g. fair and accurate report of proceedings before a court. *Tribunal, ‘any court in New Zealand’, summaries of court processes including translations *Matters in Part 2 of schedule 1 also protected by qualified privilege. E.g. fair and accurate report of a general meeting of a company or an incorporated society. *Fair and accurate reports of legislatures and courts, meetings of authorities, meetings of companies, statutory bodies etc Section 16. One related to Courts One related to general meeting of company incorportated society Part 1 → judicial proceedings → Section 17, 19 Part 2 → 17, 18, 19.

Answer 75

*Different level of protection provided *Matters in Part 1 are subject only to ss 17 and 19. *Matters in Part 2 are subject to ss 17, 18 and 19. *Section 17 – privilege will not apply if the publication has been lawfully prohibited. *Section 19 – privilege will not apply if plaintiff proves that, in publishing the matter that is the subject of the proceedings, the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication. Section 17 and 19 applies to both Privilege will not apply if it has been lawfully prohibited → for example declaration by the Court → s17 s 19 → will not apply if you can show that publication → was predominantly motivated by ill-will or using it to gain an improper advantage Can have privilege and lose it Judicial and company based → will be lost if you can show malice or improper purpose

Answer 76

*Section 18(1) requires that “at the time of that publication, the report or matter is a matter of public interest in any place in which that publication occurs”. *Section 18(2) applies to the media. The defence is lost if the plaintiff establishes that it asked the defendant to explain or contradict statement and defendant failed to do so. *Only applies to matters in Part 2 of schedule 1 *Fair and accurate reports of legislatures and courts, meetings of authorities, meetings of companies, statutory bodies etc. Companies and incorporated societies will also lose privilege → if plaintiff establishes that it asked the defendant to explain or contradict statement and defendant failed to do so.

Answer 77

*The gist of the common law defence is that writer/speaker had a duty to speak and the reader/listener had an interest in receiving the information. *The focus is on the occasion of the statement – rather than the speaker. *Reflects value being placed on a right to free speech. Statements published on an occasion of qualified privilege are protected “for the common convenience and welfare of society”: Toogood v Spyring (1834) 1 CM & R 181; (1834) 149 ER 1044 at 193 and 1049 as cited by Hagaman and Hagaman v Little [2017] NZHC 813. When people will lose qualified privilege. Idea that there are certain aspects of society and statements → where person has moral duty to speak → and has a relevant interest to receive that information Occasion of statement rather than nature of speaker. Important role of FOS. In public interest → you will be protected → where you have a moral duty to speak up → and audience has an interest in receiving that information. *Under old law, defence could be defeated by proof of malice – now the focus is on “ill will” or “taking improper advantage of the occasion of publication”. *Two stage process: *Was the statement made on occasion of privilege? (question for judge – defendant bears onus). *Whether it has been lost? (question for jury – plaintiff bears onus). *Important to “keep conceptually separate” these two questions (see Lange v Atkinson [2000] 3 NZLR 385 (CA)). Prove defamatory statement Two stage Prove all three elements → plaintiff Defence → i made it under qualified privilege Plaintiff → i'm going to show that you lost it Three questions are separate.

Answer 78

*Adam v Ward [1917] AC 309 (HL) *“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 person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”. *Stuart v Bell [1891] 2 QB 341 (CA) *Privilege would arise if “…the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, [to make the communication]”.

Answer 79

*Qualified privilege will cover: *Credit references (London Association v Greenlands Ltd [1916] 2 AC 15 (HL)) *Inquiries about crime (Kine v Sewell (1838) 3 M & W 297 (Exch)); *Statements at election meetings (Braddock v Bevins [1948] 1 KB 580 (CA)) *Accusations of wrongful conduct to: *Business associates (Cutbush v Grove (1901) 21 NZLR 67 (SC)) *Parents (Bull v Allan (1913) 33 NZLR 380 (SC)) *Police (Bowles v Armstrong (1912) 32 NZLR 409 (CA)) *Petitions (Mcintyre v McBean (1866) 13 UpCanQB 534) BUT NOTE: You lose the privilege if there is excessive publication: Simpson v Downs (1867) 16 LT 391 (Assizes) Cannot excessively publicise it → or you will lose the privilege

Answer 80

*Brooks v Muldoon [1973] 1 NZLR 1 (SC) *Facts: A committee recommended the plaintiff to the post of chief mediator. Both the Cabinet and the Government Caucus decided that the plaintiff was not suitable. In discussing why, the defendant made alleged defamatory comments. *Issue: Was this covered by common law qualified privilege? *Holding: No. Committee recommended the plaintiff to the post of chief mediator → cabinet decided that plaintiff should not Defendandant made defamatory comments during discussion process General discussion of appointment was covered Malice → presence of inappropriate appointment Law requires that privilege shall be used honestly but not carefully Accidental and negligent words → merely acting negligently is not evidence of Malice. Brooks v Muldoon *Reasoning: *There was national importance in the appointment of a chief mediator being made and a "corresponding interest" to receive advice that it had been filled. *The public had no interest, apart from perhaps curiosity on the part of some persons, in learning why the plaintiff had not been selected for appointment. *Malice meant the presence of an improper motive. A statement is malicious when it is made for a purpose other than the purpose for which the law confers the privilege of making it. The law requires that a privilege shall be used honestly but not that it shall be used carefully. Here, misquotation of the plaintiff's words was an error and was accidental. Negligence is not malice. Occasion of Privilege *Spring v Guardian Assurance Plc [1995] 2 AC 296 (HL) *Caution with this case. *In New Zealand, a person giving a reference would usually have a defence of qualified privilege for a defamatory reference. This is because a former employer has a duty to speak and the new employer has an interest in information (see generally: Nicholson v Meek (1891) 10 NZLR 552 (SC)). But note that the requirements in s 19 of the Defamation Act 1992 (discussed later) *Spring v Guardian Assurance Plc [1995] 2 AC 296 (HL) *Facts: As a consequence of an unfavourable reference supplied, the plaintiff was not appointed to a position. *Issue: Whether (under UK law) a defendant giving a reference owed a duty of care to the plaintiff and could accordingly be liable for a negligent misstatement if the new employer suffered economic damage. *Holding: Yes. SPRING → Has been criticised Person using a reference would usually have a defence of qualified privilege for a defamatory reference You may have the defence of truth But also defence of qualified privilege for making a reference Because a former employer had right to speak → and new person had right to hear the information → but discussed later. Because of reference was not appointed Did they owe a duty of care for a negligent statement If they negligently did not take reasonable steps to ensure COURT SAID → you have a right to take reasonable steps to ensure Did not change the law of defamation → just because you are doing it negligently is not enough If you undermine their reference with Ill-will → it will impact defamation If your not doing it with ill-will but fall behind negligence → can still be sued Does negligence mean you lose your qualified privilege → NO → THIS IS UK Spring v Guardian Assurance Plc *Reasoning: *The fact that in an action for defamation or injurious falsehood based on an inaccurate reference the defendant would have a defence of qualified privilege did not bar an action by an employee in negligence were no such defence was available. *The imposition of a duty of care when a reference is given does not mean that the law of defamation has to be changed. They remain distinct torts. *In any event, to recognise that such a duty of care exists means that there have to be changes then it would be in the interests of recognising a fair, just and reasonable result in the master-servant situation. Occasion of Privilege *But in New Zealand… *Balfour v Attorney-General [1991] 1 NZLR 519 (CA) *Facts: A note made on the plaintiff’s personal file in the Department of Education (as he was a primary school teacher) stating that he was a long-practising and blatant homosexual. *Issue: Should a duty of care be imposed in relation to comments on his personal file held by the Department of Education? Department made statement that teacher was a Homosexual Should a duty of care be imposed on the personal file held Court said no → any attempt to merge defamation and negligence should be resisted Even if you show it is negligent it should not impact defamation Distinct areas which should not represent each other Inability to bring a case → not to be made good because of duty of care Tried to use negligence → you had a duty of care → Court said no –. That is merging the two and undermining the rules We dont look at reasonableness and negligence → only at malice. Balfour v Attorney-General *Holding: No. *Reasoning: *Any attempt to merge defamation and negligence is to be resisted. *Both these branches of the law represent the result of much endeavour to reconcile competing interests in ways appropriate to the quite distinct areas with which they are concerned, but not necessarily appropriate to each other *An inability in a particular case to bring it within the criteria of a defamation suit is not to be made good by the formulation of a duty of care not to defame.

Answer 81

*Craig v Williams [2019] NZSC 38; [2019] 1 NZLR 457 *Reasoning: *Section 19(1) of the Defamation Act 1992 was concerned with improper purpose, a purpose outside the occasion of privilege. *Provided that the defendant had not been predominantly motivated by an improper purpose, the presence of some malice was not material. *The reference in that section to being predominantly motivated by ill will was an example of using a privileged occasion for an improper purpose. Craig v Williams Privilege can be lost by improper privilege Applies to both part 1 and part 2 In this case → not predominantly motivated by improper purpose Predominantly motivated by malice → using it for an improper purpose Difficult for plaintiff to prove ill-will Plaintiff has to prove ill-will or improper purpose Wording of s19 → is predominantly motivated by ill-will → if there is a duty → but do harbour resentment → little bit of ill-will will not be enough Have to show predominantly motivated Have to show that you are using this occasion for an improper purpose.

Answer 82

*Craig v Williams [2019] NZSC 38; [2019] 1 NZLR 457 *Reasoning: *The McKay Committee, which preceded the current legislation, considered that “malice” was “a word which can be misunderstood” and noted that it was insufficient to prove malice “to show that animosity existed between the parties”. *Improper purpose could be found if Mr Craig had known that the allegations of sexual harassment made by Mr Williams had been true and therefore had had no belief in the statements he had made to rebut them. *In other words, if the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice (Roberts v Bass [2002] HCA 57, (2002) 212 CLR 1 at [77]) Craig Considered that Malice could be understood Improper purpose could be found if → the defendant knew statement was untrue when he or she made it → it is almost invariably conclusive evidence of malice → one way the plaintiff can clearly prove the requisite ill will. Know it is untrue but say it anyway.

Answer 83

*Horrocks v Lowe [1975] AC 135 (HL) *Facts: At a Council meeting, the defendant made a speech criticising the plaintiff. The defendant called for the plaintiff’s removal from a committee. The plaintiff sued and the defendant sought to rely on qualified privilege. The plaintiff said that this defence was defeated by malice. *Issue: Was the speech motivated by malice? *Holding: No. Council meeting Defendant made a speech criticising the plaintiff → called for removal Can lose privilege if they can show that they misused the occasion. Even if they know that statement is truthful → but saying it to parties to not perform a relevant duty, or protect an interest If they are saying this truthful statement but not because of duty → to be vindictive → this will be enough Instances of ill-will. Unconnected with reason for privilege –. Then loses the privilege → even if it is true.

Answer 84

*Reasoning: *If a man abuses a privileged occasion by making defamatory statements which he knows to be false, express malice may easily be inferred. *What is required for the privilege is positive belief in the truth of what he published or, as it is termed, “honest belief.” *If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is treated as if he knew it to be false. *But indifference to the truth is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. Horrocks → given steering, → personal strife, personal ill-will, personal advantage. Can be lost → qualified privilege → even if it is untruthful Untrutful → clearly ill will Truthful → have to prove the three elements.

Answer 85

*Horrocks v Lowe [1975] AC 135 (HL) *Privilege can be lost even when defendant has positive belief in the truth of what is published if the “defendant misused the occasion”. That is: *“The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames. If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.”

Answer 86

*Templeton v Jones [1984] 1 NZLR 448 (CA) *The plaintiff sought to strike out defence of qualified privilege. *The defendant argued that qualified privilege extends to communications by one elector to another in relation to a candidate at an impending election (Braddock v Bevins [1948] 1 KB 580 (CA)). *On this basis, the defendant argued that he had a social and moral duty to make a statement to the general public about the conduct and fitness of the plaintiff – and public had a corresponding interest. Everyone part of functioning society should be able to hear about political matters as it relates to them Templeton Wanted to strike out defence of qualified privilege Defendant argued that qualified privilege extends to communications by one elector… Had social or moral duty to public about plaintiff CA → disagreed Went beyond what was reasonably necessary → the fact he was parliamentary candidate → does not mean he can defamatory statements about him to the general public LAW HAS MOVED AWAY FROM THIS *Templeton v Jones [1984] 1 NZLR 448 (CA) *The Court of Appeal disagreed. *“[T]he defendant's action of having his speech notes distributed to the parliamentary press gallery went beyond what was reasonably necessary for communicating with his own constituents”. *“[T]he mere fact that the plaintiff was a declared parliamentary candidate cannot be treated as imposing on the defendant a social or moral duty to make a defamatory statement about him to the general public”. *Therefore, it would not be right “to enlarge the common law of New Zealand so as to create a new privilege.” *The law has now moved away from this position.

Answer 87

*Lange v Atkinson [1997] 2 NZLR 22 (HC); [1998] 3 NZLR 424 (CA); [2000] 1 NZLR 257 (PC); [2000] 3 NZLR 385 (CA) *4 judgments (HC, CA, PC, and CA again). *Facts: The defendant published a political column in North and South which was extremely critical of the plaintiff’s performance as Prime Minister and made negative comments about the plaintiff’s version of events while he was Prime Minister. *Issue: What defence was available to the defendant in this situation? Went through courts Published political column → critical about plaintiff's performance as PM Plaintiff tried to strike out defence Justice Elias → thought common law should be expanded to discuss all matters of parliament Take the existing qualified privilege and expand it → to encourage media to discuss all matters of government The media has a duty to publicly discuss all matters of government and be covered by qualified privilege. Justice Elias → defence of qualified privilege applies Lange v Atkinson *Reasoning: *In the HC, the defendant argued a Theophanus defence (a defence of “political expression”) and qualified privilege. The plaintiff sought to strike the defence out. *In the HC, Elias J struck out the Theophanus defence. But taking into account wider context, she thought common law qualified privilege should be expanded (and earlier decisions reviewed), in order to enable the media to pubicly discuss all matters of government. *Reasoning: * The defence of qualified privilege applied to generally-published statements made about the actions and qualities of those aspiring to be, currently, or formerly MPs. *It was important to have regard to “Political statements in the New Zealand constitutional context”. *However, a reasonableness requirement should be rejected because (1) no other occasion of qualified privilege has such a requirements; (2) there would be difficulties in drawing the line on what occasions of qualified privilege were and were not covered; and (3) this was a new defence which is the prerogative of Parliament rather than a bona fide development of the common law defence of qualified privilege. *Reasoning: *The Judicial Committee had limits as an appellate tribunal where the decision depended upon considerations of local public policy. *The Official Information Act 1982, the New Zealand Bill of Rights Act 1990, and the Defamation Act 1992, and Electoral Act 1993 were all features of New Zealand’s particular constitutional arrangements that could affect the development of the law of defamation. *The Judicial Committee would not substitute its own views for those of the New Zealand Court of Appeal. *However, given Reynolds, the New Zealand Court of Appeal should consider the requirement that qualified privilege may apply to political discussions in all the circumstances of a particular publication, but that there was no generic privilege for political discussion. *The matter was remitted to the New Zealand Court of Appeal for a rehearing. *Reasoning: *The Court of Appeal restated (and amplified) its earlier reasoning. *What matters bore on that capacity would depend on a consideration of what was properly a matter of public, rather than private, concern. *Political statements may be protected by qualified privilege. This means that while the qualifying subject matter will not always attract qualified privilege. *There were significant differences between the constitutional and political context in New Zealand and in the United Kingdom to mean that that Reynolds should not be followed. *In particular, there was a concern about the “chilling effects” of Reynolds defence and the reduction in the role of the jury. *Lange v Atkinson [2000] 3 NZLR 385 (CA) *Reasoning: *Two qualifiers to earlier judgment: 1.Not every published statement about a politician is privileged – must be made on a privileged occasion. This depends on the circumstances and context of the publication. 2.The concept of “improper advantage” in s 19 will capture situations where a journalist is reckless or cavalier with the truth. Elias → political statements of NZ constitutional content → but no reasonableness standard → Council tried to bring in a restrictive notion Reasonable requirement Defamation does not care about reasonableness in many instances Reasonableness is a spectrum → malice is much more clear New defence → prerogative of parliament not common law Expansion of parliamentary based rights → should evolve differently from common law novel causes of actions grounded in reasonableness Privy Council noted Said we will not make this determination but → looks at UK → they remit it back down to CA And suggest it should have a rehearing → in line with the comments made about how the UK law is developing BACK TO CA: CA restated its earlier reasoning What matters bore on the capacity on what was a matter of public compared to a private concern Protection of political communications compared to qualified privilege → evolving into private concern → CA: this is more a matter of public Qualifying subject matter will not always qualify privilege Reynolds defence → significant differences between UK and AUS In Aus → created from Aus constitution If countries have different constitutions → development of constitutionally embedded defence → would have to recognise differences between them So based on that Reynolds should not be followed → even though Privy Council said it would be CA → said NO Reasons: reduction of jury etc. First CA judgement → then put two qualifiers 1. Not every published statement about politician is privileged, must be made on privileged occasion. → depends on circumstances and context 2. Concept of improper advantage in s19 → captures situations where journalist is reckless or cavalier with truth. → can delve into public lies and reckless of the truth CA → recognises this is a concern → but can be dealt with by s9 → if making a defamatory statement to sell newspaper or traction → then you are not doing it for the purpose of political communication → not democracy basis → purely self interest → covered by s19. So fitted into s19.

Answer 88

*Facts: The plaintiffs (a married couple) brought defamation proceedings against the Maori Television Service and one of its reporters regarding publications surrounding conflict within the Maori Council. In particular, that Ms Hall’s law firm were no longer legal counsel for the Maori Council because they allegedly were not following directives given and that a complaint to the NZLS should follow. *Issue: In an application for strike out of defences, what defence(s) were available? *Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131 *Holding: That a new defence of responsible communication in the public interest should be created and the Lange defence should be abolished. *Reasoning: *The existing law gave insufficient recognition to the media’s critical role in a modern democracy to exchange of news and opinions among the public. *There was a public interest in effective journalism, which the current law of qualified privilege had been impeding by preventing the publication of true (but not provably true) stories. *Subsequent societal and legal developments justified recognising a new balance and the existence of a new defence of public interest communication which extended to all matters of significant public concern. *Elements of new defence: 1.The subject matter of the publication was of public interest; and 2.The communication was responsible. *[67] Relevant circumstances to be taken into account may include: (a) The seriousness of the allegation – the more serious the allegation, the greater the degree of diligence to verify it. (b) The degree of public importance. (c) The urgency of the matter – did the public’s need to know require the defendant to publish when it did, taking into account that news is often a perishable commodity. (d) The reliability of any source. (e) Whether comment was sought from the plaintiff and accurately reported.. (f) The tone of the publication. (g) The inclusion of defamatory statements which were not necessary to communicate on the matter of public interest. *Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131 *Is “neutral reportage” a new defence? *See [69] – [81] and [105] – [114] *French and Winkelmann JJ’s view *Brown J’s view (dissent) DURIE: Couple brought claim against Maori Tele service Were not following directives given and that a complaint to NZLS should follow CA: → said it would be a new defence → Lange should be abolished → new defence of responsible communication Reasoning → the existing laws gave insufficient recognition to medias critical role in modern democracy → did not protect the medias role in this Public interest in effective journalism which current law impeding Risk that → you think something is true but worried it might not be Creating a broader defence of communication in public interest. PUBLIC INTEREST COMMUNICATION: New defence: 1. Public interest 2.The communication was responsible The more serious allegation the greater diligence → misusing public funds to line pockets for example → is greater diligence For example: said a swear word → would not need greater diligence to verify it Public importance → how important is it know if they line their pockets How urgent is it → does this need to be exposed right away → money may disappear, or legislature may make decision on bill that has harmful impact The less urgent → the more the Court will want you to provide sources → and how reliable are they. Did you speak to the plaintiff? → put these allegations to them → and did you accurately record their response → more likely to be able to use this defence → by giving them opportunity to respond. TONE OF PUBLICATION → was it scandalous, unnecessarily passive aggressive, or fact-based, Balance these factors → to see whether it was responsible STILL NOT CLOSED → Law is still evolving here.

Answer 89

*Facts: Allegations that a waste disposal company that had a contract with the Thames-Coromandel District Council (TCDC) was acting unlawfully / illegally. *Issue: Was the defence of responsible communication in the public interest made out? *Holding: Yes *Reasoning: *The Articles related to the operation and functioning of local government, the manner in which rates are used by local councils to fund public services, the management of those services and the recycling and refuse practices carried out in New Zealand landfills and refuse transfer stations. These are quintessentially matters of significant public concern. *The steps taken to verify the substantive allegations, the multiplicity of sources and their reliability combined with the inadequacy of the responses from TCDC to LGOIMA requests and the ample opportunity afforded to the plaintiffs to respond substantively meant that this was a reasonable journalistic investigation on issues of public interest. *In Christian v Bain [2023] NZCA 579, the Court of Appeal dismissed an appeal and the Supreme Court has since refused leave to appeal to it in Christian v Bain [2024] NZSC 35. Recent case: Christian v Bain: Allegations that waste disposal company which had contract with government body Was acting illegally Pushing boundary of what is political communication Idea is that the party acting illegally is not political body A private company → money making company that has contract with a council Is the fact that council is party to contract enough to open communication HC: Yes it is. Reason → functioning and operation of local government is to engage in contracts with private companies Need to have sewerage and water Many practices outsourced to private companies The reason we pay taxes is so they can do their duties And the council chooses to engage a private company → they are still doing the FUNCTIONING OF GOVERNMENT Inherently matter of public concern Held that it was within the scope → and can hold liable companies based on this defence TEST: WAS IT OF PUBLIC INTEREST Yes → functioning of local government → and what has that party done in the circumstances The multiple sources they spoke to about behaviour, requests they made to government Gave ample reason to respond substantively → to matters of public interest CA: dismissed appeal Then after dismissal SC said there was nothing wrong with CA judgement.

Answer 90

*What are the key issues? *Why do we protect political discussion? *Have we struck the right balance?

Defamation (Torts) Flashcards

Understand the Law on Defamation in Tort Law (115 cards)