Court of Appeal recognises new public interest defence to defamation claims

A new public interest defence in defamation proceedings after a Court of Appeal ruling involving lawyer Donna Hall, right, and her husband Sir Edward Durie. Photo / Mark Mitchell

A new public interest defence in defamation claims will no longer just apply to parliamentarians after the Court of Appeal today ruled on a Māori TV story about two prominent New Zealanders.

Sir Edward Durie, a former High Court judge and co-chair of the New Zealand Māori Council, and Donna Hall, a high-profile lawyer specialising in Māori legal issues and Durie's wife, sought defamation proceedings after a story was broadcast on Māori TV and published on its website.

The news reports, by senior journalist Heta Gardiner, said the Māori Council had "dumped" Hall as legal counsel on important litigation matters about the Trans-Pacific Partnership Agreement (TPP) as a result of concerns by some members of its executive about the couple.

The pair argued the articles implied they acted unlawfully, unprofessionally, in breach of their responsibilities to the Māori Council, and placed their own interests over those of the Māori Council and Māori generally.

Sir Edward Durie. Photo / NZ Herald

Gardiner and Māori TV said its reports were protected by qualified privilege as being "neutral reportage or, alternatively, responsible communications on matters of public interest".

Alongside the defence of honest opinion, the public interest defence the journalists relied on came after legal developments in the United Kingdom and Canada.

Durie and Hall, however, applied to the High Court to strike out the defences.

But the court dismissed the application, leading to Durie and Hall appealing to the Court of Appeal.

They, however, conceded some form of public interest defence might now exist in New Zealand.

Today, the Court of Appeal struck out the defences.

The court said there was a "fundamental failing" in Māori TV not publishing Hall's statement with its first web story, and it did not clearly convey that the claim of Hall's dismissal as legal counsel on the TPP action was an allegation by a third party.

But the Court of Appeal Justices Christine French, Helen Winkelmann and Brendan Brown said the Māori TV stories were on a matter of public interest.

However, the court held the public interest defence was untenable to the website story for the period of time before Māori TV published Hall's responses.

Making their ruling after following English and Canadian case law, the judges said it was time to "strike a new balance" between the right to protection of reputation and the right to freedom of expression.

The new public interest defence is wider than the qualified privilege argument which stems from the Lange v Atkinson decisions and is not confined to parliamentarians or political issues but on all matters of public concern.

High-profile lawyer Donna Hall, when she was the legal adviser to the National Māori Congress, with now US President Donald Trump at the Auckland Railway Station in 1993. Photo / NZ Herald

The court said that there is now much more power outside the political sphere than in 1998 when the Lange decision was made, and increased public expectation in the accountability of non-political groups.

The boundaries of freedom of expression, included in New Zealand's Bill of Rights Act, are also being explored, and juries are increasingly less important in defamation trials, the court said.

The defence also requires the subject of the story to be of public interest, and the news report to be responsible in any medium. Both issues, the Court of Appeal ruled, are to be determined by a judge, not a jury.

Changes to technology and the emergence of social media and citizen journalism have also "radically changed the nature of public discourse", making a responsibility requirement necessary to safeguard reputation and privacy rights, the court said.

The defence is available to mainstream media and non-media alike, the court said.

"On both issues, the defendant bears the onus of proof," the judges said.

The court accepted there are difficulties in applying responsibility criteria to non-media defendants "who communicate defamatory material in quite different ways to the mainstream media".

However, such cases aren't insuperable and are being dealt with on a case-by-case basis in England.

New Zealand's second highest court was unable to agree on the related issue known as "reportage".

Reportage is if publication of an allegation without verification is protected because the public interest is in the allegation having been made, rather than its truth.

The court held unanimously that reportage was not available as a defence in Māori TV's case as one of the most prominent assertions were portrayed as fact, not as allegations.

Durie and Hall said they were delighted with the decision.

"It is important that there is protection in New Zealand for publications in the public interest. But such a defence should never succeed where false allegations are published without verification and without publishing a full and proper response," Durie said via Felix Geiringer, a barrister for him and his wife.

Other defences to defamation include truth, honest opinion and absolute privilege.