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restrictions on speech, but in one area it should actively seek to change to the law to expand freedom of speech: the outdated, restrictive defamation laws applying in New Zealand.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.
The cost of our unfit defamation laws is not only borne by publishers. The withholding of information from the public can have serious consequences. There are almost certainly people who have been sexually harassed and even sexually assaulted because the threat or fear of a defamation suit scared off a publisher from publishing a true account of past misconduct. It does not have to be this way. While New Zealand's current defamation laws, and the system of civil justice, need wholesale overhaul, there are some simple first steps we could take to better respect freedom of expression while acknowledging the right to be protected against unjustified attacks against your character.
We can perhaps agree that people should not be able to harm others by lying about them. Lies could lead to loss of employment, relationship break-up, or public shunning. But defamation isn't limited to lies. If it was that would be a major advance. Malicious falsehoods — where the person making the false statement knows it is false, or doesn't know it is false, but is reckless about whether it is true — are justifiably the business of the courts. Absent proof of financial loss, it is not clear that simple errors should be.
Defamation should also not concern itself with name-calling. If your reputation can be harmed by someone calling you a name, your reputation may not have been as good as you thought it was. Without specific allegations, a simple assertion that someone is a racist or is corrupt is likely to have much less effect on someone's reputation than a claim that someone fired you because of your ethnicity, or that they bribed a council manager to secure a contract. Simple opinions, even unreasonably held ones, are not nearly harmful enough that the law should be concerned with them.
These changes would only be a start. Others, including around the use of injunctions, and the technicalities involved in stating and defending claims, are needed. The sooner the process of rebalancing New Zealand's defamation laws starts, the better for all.
• Graeme Edgeler is a barrister and legal commentator.