KEY POINTS:
Most of the time New Zealanders congratulate themselves that we live in a country where, subject to the laws of defamation, we're pretty much free to say what we like about people. Compared with China, that's correct, but go east to America and you'll find debate to set
your hair on end.
It wasn't always thus. Newspapers such as Truth, and magazines like Metro and North & South, used to publish, be damned, then defend a defamation claim to the end. For remuneration purposes, lawyers love to hear a client utter the words "it's a matter of principle", because they know a case will be long and expensive. But these days, "matters of principle" rarely see the light of day.
I can't say things in my column which are vaguely insulting, such as describing a certain politician as having a punch-and-grow hairstyle and a face like a constipated kune kune. A certain crusader, who shall remain nameless, gets away with bullying journalists who pen any criticism of his actions because his lawyer wields a big, threatening litigation stick at editors, and sends nasty personal threats to writers. Yet this individual has in turn, through his published writings, made other people's lives a misery.
And recently I had to change an entire paragraph in a column, despite having written proof of what I was saying, because the subject had threatened litigation in the past.
Editors haven't become more cowardly of late, so what's going on?
In February, Sir Geoffrey Palmer, Law Commission president, touched on reasons in his address at a "Law, Liberty and Legislation" conference. He made the observation that, in the past 40 years, the media industry in this country has changed from mainly independent, family companies to "now made up principally of large, overseas-owned companies". With the result, according to Sir Geoffrey, that defamation "is a business expense".
And if you look at the watering down of content that's occurred in North & South and Metro since publisher Kerry Packer died and his casino-focused son took over, Sir Geoffrey's not far wrong. I have an almost complete collection of both publications, and the change to both - for the worse if you value provocative journalism - is obvious.
Investigative features are now combed through by nit-picking defamation lawyers before publication, more because of what damage a lengthy lawsuit might do to bottom-line profits than because editorial executives are concerned with their professional reputation as publishers who nonetheless want to get the facts right. Which plays right into the hands of critics such as Sir Geoffrey, who declared the "bent" of newspapers "nowadays was towards entertainment".
Defamation cases are expensive, not just in terms of legal costs but also for the amount of energy and time consumed when eager souls who want to write stories are taken up with the endless rounds of discovery, court hearings, and so on.
So what was Sir Geoffrey's advice? Well, pretty inconclusive - not surprising as his arguments have always been rather convoluted and inconclusive, at least to lay people.
He did state there was no need to reform our defamation laws, because "the empirical evidence did not suggest the current law was inhibiting freedom of expression unduly".
That last emphasis is mine and deliberate, because I do believe the current defamation laws are being used by bullies to intimidate media, albeit with only subtle and, for sure, not earth-shattering consequences. As associate professor Ursula Cheer said at the same conference, we do have a "dynamic, generally assertive media" on which defamation law does not produce "excessive chilling effects".
Not yet. But beware the boiled frog syndrome, whereby to cook a frog you pop him in cold water and gently heat it so he doesn't notice and hop away.
New Zealanders are missing out on reading issues they should know about, at least one concerning individuals in the judiciary itself, because it is impossible to get publishers prepared to take the risk.
An option for reform on which Sir Geoffrey touched was to copy American law of defamation which, in its constitutional aspect, protects media freedom. Under the First Amendment, a defamation claim can not succeed on public concern issues unless the person suing can prove, "with convincing clarity", the publisher knew the statements were false or reckless.
New Zealand defamation law was amended in 1992 to make it less of an el dorado for lawyers and thin-skinned clients, but it has a long way to go before it offers better protection to journalists wanting to write stories which might upset people such as the judiciary.
