Court recognises new public interest defence in defamation claims

4:32 pm on 31 July 2018

In a ground-breaking judgment, the Court of Appeal today recognised a new public interest defence in defamation claims arising from mass publications.

09082016. Photo Rebekah Parsons-King. Pike River families want mine's CEO to face charges. Court of Appeal Wellington.

Sir Edward Durie and Donna Hall issued defamation proceedings in response to a Māori TV story, which they claim was defamatory. Photo: RNZ / Rebekah Parsons-King

Sir Edward Durie and Donna Hall issued defamation proceedings in response to a Māori TV story, which was also published on its website.

At the time Sir Edward was co-chair of the New Zealand Māori Council.

Ms Hall is a high-profile lawyer specialising in Māori legal issues and had been representing the council before the Waitangi Tribunal.

They claim the story was defamatory and the website did not initially include Ms Hall's responses to the allegations.

In the Court of Appeal they conceded some form of public interest defence might now exist in New Zealand.

The argument before the court was on the boundaries of such a defence, and whether the respondents, Māori Television and its reporter, Heta Gardiner, could rely on it.

New defence

In today's decision the Court of Appeal has concluded it is time to strike a new balance between the right to protection of reputation and the right to freedom of expression, by recognising a new defence wider than that in an earlier case, Lange v Atkinson.

It did that by building on English and Canadian case law to replace the existing qualified privilege defence with a new public interest defence.

"The new defence is not confined to parliamentarians or political issues, but extends to all matters of public concern."

The elements of the new defence are that the publication's subject matter must be a matter of public interest and that the communication must be responsible.

Both of those matters will have to be determined by a judge, not a jury, and the public interest defence will be available to all who publish material in any medium.

In a statement accompanying the judgment the Court of Appeal says both sides in the case agreed the publications were a matter of public interest.

"The key issue was whether communication was responsible," the statement reads.

"The Court held the public interest defence was untenable in relation to the website story for the period of time before Māori TV published Ms Hall's responses."

However it says other challenges relating to the responsibility of the communication are to be decided at trial.