23 Feb 2020

Jones vs Maihi case prompts calls for defamation law reform

From Mediawatch, 9:10 am on 23 February 2020

Is defamation law an essential protection for reputations -- or handy tool for men and women of means to curb their critics? Hayden Donnell talks to a lawyer pushing for reform to allow us to express opinions without fear of prosecution. 

Sir Bob Jones outside the High Court at Wellington on Monday 10 February on the first day of a defamation case.

Photo: RNZ / Charlotte Cook

When Sir Bob Jones decided to launch defamation action against the filmmaker Renae Maihi, he wasn’t taking a big risk.

The Wellington property developer opted to take the action after Maihi called him a racist and appealed for him to be stripped of his knighthood over an NBR column he wrote calling for a Māori Gratitude Day.

Sir Robert lost the column amid the outcry.

For Maihi, the stakes were higher. Just mounting a defence to the action caused her financial difficulties. Her supporters had to put up a Givealittle page to raise money for legal fees. 

Supporters of Renae Maihi gather after news broke the case had been dropped.

Supporters of Renae Maihi gather after news broke the case had been dropped. Photo: RNZ / Meriana Johnsen

Jones dropped his case at the Wellington High Court last week, but the disparity in power between him and Maihi has stayed on the minds of commentators, who say it reveals flaws in our defamation law.

In an interview with Te Ao broadcaster Moana Maniapoto, lawyer Moana Jackson said Sir Robert likely took the action because he didn’t like being criticised by a young, Māori woman.

"I wouldn't want to impute a motive to Bob Jones but he has a history of attacking people who respond to his attacks, and often those attacks have been against women and against Māori. So Renae is a young, Māori woman, so her temerity in daring to call Bob Jones out I think inevitably brought the response where he suddenly pleads to be the victim of harm," said Moana Jackson. 

Political commentator Ben Thomas tweeted a similar sentiment. 

Jones vs Maihi is one of several recent high-profile defamation suits.

Colin Craig and Jordan Williams’ ongoing defamation battles made headlines mainly because Craig’s former press secretary Rachel MacGregor was repeatedly summoned to court to testify against her will.

Businessman Matthew Blomfield's case eventually succeeded only after an eight-year battle with the blogger Cameron Slater, chronicled in the book Whale Oil by Margie Thompson.

In a statement to Mediawatch, Justice Minister Andrew Little said that book convinced him to look at defamation reform. 

"Having read the book on Matt Blomfield's defamation case against Whale Oil by Margie Thomson, I accept the law could well do with a review. However it will not be in this term of Parliament,” the statement said.

Mr Little was himself the subject of a long-running defamation action by a wealthy businessman.

Andrew Little leaving court

Photo: RNZ / Michael Cropp

In 2018, the High Court eventually ruled that while Andrew Little had defamed Earl Hagaman, his comments may have been covered by qualified privilege. Earl Hagaman died before his appeal could be heard. 

But what would change to the law could improve it in practice? 

Writing in the New Zealand Herald recently, Wellington lawyer Graeme Edgeler said the bar needed to be raised for people wanting to take defamation action. 

"There isn't enough protection of simple opinion," he told Mediawatch.

"I would've thought it would be a lot better if you couldn't generally. 'This person fired me because I'm Māori', I can see why you might want defamation for something like that, but 'this person is racist', people are going to make up their own minds," he said.

"They'll either agree or disagree but the likelihood that someone is going to materially affect someone else just by stating their opinion in that way is not something the law fully recognises," he said. 

Edgeler said the low bar for taking defamation action, combined with the high cost of defending it, is a major barrier to media reporting some things that are in the public interest. 

"My strong suspicion is that there are people who have been sexually assaulted that newspapers or radio would've published credible allegations from potentially a named person... and that they have been scared off of publishing that type of material because of the cost of a defamation proceeding even if they thought they could win, and the fact that this information isn't out there probably means there have been other victims," he said.

He said one potential solution would be handling defamation claims in a similar way to Privacy Act complaints..

Complaints under that Act don't start in court and usually go to the Human Rights Tribunal where participants don't necessarily need a lawyer, he says. 

"A Defamation Tribunal would be one possibility," said Graeme Edgeler.

He believes defamation law as it stands is the greatest imposition on freedom of speech in New Zealand. 

"If your concern is freedom of expression, fighting for defamation law reform is probably the most important thing you could do," he told Mediawatch.