COMMENT:
Freedom of expression was big news in 2019, and 2020 — with the likely release of the Government's review of so-called "hate speech" laws — will probably see this continue. With some changes to the Human Rights Act already signalled, the Government response may see some further restrictions on speech, but in one area it should actively seek to change to the law to expand freedom of speech: the outdated, restrictive defamation laws applying in New Zealand.
Defamation proceedings are commonly thought to be about protecting people's reputation. That's close, but not quite: there is not requirement that the claimant's reputation is harmed and it is no defence to a defamation claim if an author proves that none of the people who read the publication believed it, or that none of them thought any less of the person supposedly defamed. A publication is defamatory if it has the tendency to unjustifiably harm someone's reputation, even when it actually didn't.
In theory, there are other laws that could more greatly impact freedom of expression in New Zealand, but defamation laws far exceeds them in practice.
And it's not just because publishers are scared of losing defamation claims. The cost of successfully defending a defamation claim can be almost as much of a disincentive: over time, lawyers and court processes have made civil justice expensive, and defamation proceedings among the most expensive of all. It is not enough that a publisher is sure an article is true, and in the public interest, they must also be sure they can prove it true in court, and sure that the cost of doing so is worth it. The cost of successfully defending a defamation proceeding — even after the losing side pays some of your bill — could fund several journalists.