Goverment warned of libel law's chilling effect

By JOHN ARMSTRONG Political Editor

Cabinet ministers pushed ahead with a controversial law change, under which journalists could be jailed for their reporting of election campaigns, despite being told by officials it risked having an "unduly chilling effect on political debate".

Documents released yesterday under the Official Information Act show Attorney-General Margaret Wilson was warned by Ministry of Justice officials against introducing a criminal defamation clause into electoral legislation.

Her ministerial colleagues ignored the advice contained in a paper she took to cabinet in October.

But the negative tone of the paper and her unwillingness to make a definitive recommendation to colleagues that the law change proceed indicate Ms Wilson, the minister responsible for electoral law, had concerns about the clause.

It was abandoned two months later after a public outcry.

National MPs believe the Prime Minister was behind the proposed law change, citing a criminal libel action taken against the chairman of the General Practitioners' Society, Dr Roger Ridley-Smith, after pamphlets were circulated in Helen Clark's electorate in the final week of the 1990 campaign.

The attempted amendment to the Electoral Act would have made it a criminal offence to publish or broadcast in the month before an election an untrue statement that defamed a parliamentary candidate and was intended to influence votes.

If convicted, the publisher or journalist would have faced a fine of up to $5000 or three months in jail.

The Government argued that the amendment, which restored the offence of criminal libel, was necessary to stop people making statements which were false and defamatory during an election campaign which left little or no time for them to be effectively rebutted.

But news organisations and some Opposition parties said the clause struck at the Bill of Rights' protection of free speech and was an unjustified attack on press freedoms.

The cabinet paper said the importance of protecting political speech has been gaining recognition in New Zealand and the Justice Ministry considered it unlikely the restoration of the criminal libel offence would be a "justified limitation" to the right to freedom of expression under the Bill of Rights.

"Under that offence, a defendant would be liable even if they did not know the statement was untrue and this might have an unduly chilling effect on political debate."

Officials also warned that the threshold for establishing criminal liability was low. "It is not necessary for the prosecution to establish that the defendant knew the statement was untrue."

Reintroduction of criminal libel was also inconsistent with the development by the courts of a common law defence of qualified privilege against defamation actions concerning political comments.

It was therefore unclear how the courts would interpret the new provision.

The officials also questioned the wisdom of a separate "corrupt practice" clause which has made it into law with cross-party support.

That provision makes it an offence to publish statements known to be false to influence voters during the three days before polling booths close.