Editorial: Court ruling eases muzzle on media

Debating the conduct and qualities of politicians - past, present or aspiring - is fundamental to the healthy functioning of democracy. Deprived of such discussion and dissection, an uninformed electorate lapses into apathy. Curiously, however, those who scrutinise our politicians could never be confident that their commentary, even if made in good faith, would not expose them to substantial liabilities in defamation.

Now, thanks to a Court of Appeal decision, democracy can puff out its chest to celebrate a loosening of a muzzle on the news media. For the second time in two years, the court has struck a huge blow for public debate by allowing a defence of qualified privilege - essentially public interest - to an action for defamation brought by a former Prime Minister, David Lange.

The decision means that writers and publishers of honest political comment will enjoy a degree of immunity to claims for damages from parliamentarians. Politicians, for their part, are now more vulnerable than other people to statements that might affect their reputations. The Court of Appeal has awarded the news media a privilege that Parliament declined when it rewrote the defamation law eight years ago. The importance of the decision will doubtless prompt warnings of a plague of scurrilous commentaries. However, political commentators, like all critics, live and die by the veracity and wisdom of their work.

Politicians, it must also be remembered, have absolute protection from writs for defamation when they speak in Parliament. The subjects of statements made under parliamentary privilege must take any criticism on the chin. Their only, extremely limited, recourse, is to request the Speaker to allow a short statement in response to be entered in Hansard.

It is hardly reasonable for parliamentarians to place greater restriction on political criticism by the news media. They must expect to be the subject of the most critical analysis permissible within the realm of fair and honest commentary. If parliamentarians seeking to reply to such scrutiny were to mirror their own practice, they might, at best, be able to request the publishing of letters explaining or contradicting reports or columns. This, of course, they already enjoy.

Some politicians will doubtless be keen to rebalance the Defamation Act so that greater weight is again accorded protection of reputation than freedom of speech. They might, for example, seek to dictate that carelessness about the accuracy of personal criticism removes the defence of qualified privilege. Or that the media be required to prove they believed on reasonable grounds that information was true. Politicians so inclined would do well to ponder the need for the law to keep abreast of the expectations of modern society.

Justice Dame Sian Elias, now the Chief Justice, made much of this in a judgment which has now been twice confirmed by the Court of Appeal. It is, for example, no longer tenable to argue that voters in Bluff have no interest in hearing about a politician from Northland for whom they cannot vote. MMP makes a party's overall conduct relevant to all voters.

More fundamentally, the Official Information Act, the Fiscal Responsibility Act and the Bill of Rights have elevated the concepts of free speech, transparency and accountability. The importance of maintaining the democratic process has been reinforced. Just as such laws reflect a more open society, so does the decision of the Court of Appeal.

The judgment raises many questions about the availability of qualified privilege. Is, for example, criticism of local body politicians similarly protected? And would such protection extend to scrutiny of public officials? At the moment, however, the Court of Appeal has done democracy a powerful service by enabling greater debate on those who wield ultimate power.

Society will be the better for it.