New public interest defence to defamation claims

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 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.

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.

The Court of Appeal Justices Christine French, Helen Winkelmann and Brendan Brown released their judgment today and 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.

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 the judge, not a jury.

New Zealand's second highest court, however, 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.

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

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