August 3, 2018 2:00pm by David Farrar

A new defamation defence

The Court of Appeal has expanded qualified privilege from Lange vs Atkinson and laid down a new defence against defamation. They state:

Eighteen years later however, we consider it is again time to strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement.

That’s great for media, and publishers like Kiwiblog.

The other alternative would be to deny the defence altogether to anyone other than the mainstream media but we do not consider that drawing such a distinction would be justified either as a matter of logic, policy or principle. Non-media commentators have an important role to play.

The Court of Appeal explicitly states the defence should be available to publishers outside the mainstream media. Again good for Kiwiblog.

Building on the English and Canadian case law, we consider the elements of
the new defence should be:
(a) the subject matter of the publication was of public interest; and
(b) the communication was responsible

So what is responsible:

Relevant circumstances to be taken into account may include:
(a) The seriousness of the allegation — the more serious the allegation, the
greater the degree of diligence to verify it.
(b) The degree of public importance.
(c) The urgency of the matter — did the public’s need to know require the defendant to publish when it did, taking into account that news is often a perishable commodity.
(d) The reliability of any source.
(e) Whether comment was sought from the plaintiff and accurately
reported

(f) The tone of the publication.
(g) The inclusion of defamatory statements which were not necessary to communicate on the matter of public interest.