Court of Appeal recognises new public interest defence to defamation claims

Thursday 27 September, 2018

In our ‘Defamation Update’ on 15 September 2017 (linked here), we discussed the High Court decision in Durie v Gardiner [2017] NZHC 377, [2017] 3 NZLR 72 which recognised that a new defence for “responsible communication on matters of public interest” could apply in New Zealand.  

The Court of Appeal has now issued its decision (Durie v Gardiner [2018] NZCA 278) recognising this new defence.

Background to case

Sir Edward Durie, co-chair of the New Zealand Māori Council, and his wife, Donna Hall commenced defamation proceedings against Māori TV for broadcasts and stories published on its website, which reported that the Māori Council had "dumped" Hall as legal counsel because of concerns it had about the couple.

Māori TV claimed that the reports were protected by qualified privilege as being "neutral reportage” or, alternatively, “responsible communications on matters of public interest".

After Durie and Hall’s application to strike out the defences was dismissed by the High Court, they applied to the Court of Appeal. While Maori TV’s defences were still struck out, the Court of Appeal recognised a new public interest defence in defamation, which will have a significant impact on future New Zealand defamation proceedings.

Public interest defence

The Court decided that there had been societal and legal developments that justified recognising a new defence including: 

• Increased public expectation in the accountability of non-political groups given that there were now many types of public figures other than politicians and state employees who are involved in the formation of policy;
• Significant changes in mass communications from new technologies so statements could be published instantly to large audiences;
• Changes in social media and the “citizen journalist” which had altered the nature of public discourse;
• The prominence of the New Zealand Bill of Rights Act including the right to freedom of expression;
• The diminishing importance of juries in defamation trials; and
• Developments overseas particularly in the UK and Canada.

The Court decided that the new defence was best described as “responsible communication on a matter of public interest”.  These communications will not be limited to communications about parliamentarians or political issues but will extend to all matters of significant public concern.   A matter of public concern will be one which:

• Invites public attention; or
• Is about a subject matter which the public or a segment of the public has some substantial concern because it affects the welfare of citizens; or
• to which considerable public notoriety or controversy has attached.

The expansion of the public interest test is balanced by the “responsibility” requirement. The Court acknowledged there would be difficulties applying some aspects of the responsibility criteria to non-media defendants, including those posting on social media.  The court suggested that this could be addressed on a case by case basis.

Implications for local authorities

Local authorities undertake work with a high level of public interest, and often face criticism in the mainstream as well as social media. While criticism of elected members could be subject to the old defence of qualified privilege, criticism of unelected officials was subject to the normal rules of defamation law (i.e. anything defamatory would need to be true, or the speaker’s honest opinion). 

The new defence will provide protection for a broader range of publications that are in the public interest.  Local government activities will clearly be considered matters of public interest and therefore be open to further public scrutiny. It is likely that the public interest defence will cover responsible criticism of officials, even where the traditional defences of truth and honest opinion cannot be made out.  This will make it more difficult for defamation claims to succeed.  While the new defence will allow for increased freedom of expression on matters of public interest, elected members and Council officers will still need to be mindful in how they interact with the public, whether in mainstream or on social media.