Steven Price, who argued against Māori Television in their landmark defamation case this week, explains exactly what the new defamation defence actually means, why it’s such a big deal and who really won the case.
I had an odd experience the other night. I had just popped the cork on a bottle of bubbly with Felix Geiringer to celebrate our success in the Court of Appeal in Donna Hall and Sir Edward Taihakurei Durie’s defamation case against the Māori Television Service, when I got wind of the Māori TV story about the case. They were reporting it as a win for Māori TV. “The Court of Appeal has upheld Māori Television’s right to responsibly report in the public interest,” it said. It reported that the appeal “was dismissed.”
This raises a fundamental question that strikes right to the heart of our polity. Should you believe a lawyer over a journalist?
I’m going to suggest that we’re more right than they are, and that anyway, the thing that makes this a landmark decision was something both sides agreed about.
But first, a bit about the background. Here’s how Māori TV described it in their Tuesday night story:
The ruling follows a Māori Television broadcast in 2015 that broke the story of serious in-fighting within the New Zealand Māori Council. It included allegations between influential Māori leaders, including retired High Court judge, Sir Taihakurei (Eddie) Durie, lawyer Donna Hall and Maanu Paul.
The problem was that their 2015 story wasn’t written as a story that merely exposed “serious infighting”. It said the Māori Council “has dumped their legal counsel, Donna Hall”.
The story was based on leaked minutes from a meeting called by one faction, and contained several very serious allegations against Donna and Sir Edward. Māori TV sought Donna’s side of the story (but not Sir Edward’s), and she told them that the allegations were wrong and she could prove it. (She in fact had not been sacked, for example). Māori TV included some of her response in its broadcast, but left it out entirely when it initially posted the story online.
Donna and Sir Edward sued for defamation.
Māori TV argued that even if the allegations were wrong, it should have a defence because it was in the public interest to report them and Māori TV had acted responsibly in checking out the story.
But it took that argument a step further. It said Māori TV should have defence even if it hadn’t checked out the allegations, because it was in the public interest to report the mere fact that they had been made. This is known overseas as a neutral reportage defence.
Neither of these defences had been accepted by appellate courts in New Zealand. The Court of Appeal had to decide whether they formed part of our law. Then it had to decide whether Māori TV could use them in this case.
Felix and I argued that the first defence (about responsible reporting) should be part of our law. The second one (neutral reportage) should not be part of the law, and if it is, it should be very tightly confined. But in any event, we said, neither defence could be used by Māori TV because their reporting was not responsible or neutral.
Māori TV argued that these defences were part of the law and should be left open for it to argue at trial.
So what did the Court of Appeal actually decide? Let’s look at the law first. It agreed with both sides that there should be a defence of responsible communication in the public interest. That’s what makes this a landmark case.
The majority of the Court also found that neutral reportage could be argued in some cases, but only in very rare circumstances where:
The public interest in the fact of the allegation is overwhelming and so compelling on its own that urgent reporting of it is justified without further investigation. A hypothetical example of such a situation might be the fact that the Governor-General has alleged a Cabinet Minister is taking bribes, thereby triggering a constitutional crisis.
What’s more, the publisher has to take a neutral stance – the allegation must be reported as someone else’s claim, and not adopted as true.
I think it’s fair to say that’s setting the threshold pretty high. Too high for Māori TV in this case anyway. By portraying Donna’s dismissal as a fact, Māori TV effectively adopted it. The Court of Appeal said this defence was not available to them and struck it out.
What about the responsible communication defence? The Court said that, at least in one respect, Māori TV’s reporting was not responsible. It was a “fundamental failing” to post the story online for two hours without including the response Donna had provided. This was “fatal to the defence”.
But the defamation claim also covers the original broadcast, and the online version after Donna’s response was posted. The Court traversed some of our arguments that those weren’t responsible either (such as Māori TV’s failure to contact Sir Edward or the Māori Council’s secretary for comment, or to put the story off until it could check out the evidence Donna said she could provide). It said they created “some difficulties for MTS” in showing that its behaviour was responsible, but in the end, that was a matter for the court.
So in this sense, Māori TV succeeded. The Court accepted that there was a public interest defence, and that Māori TV could raise it at trial to protect most of its coverage.
But in another sense, this was a greater win for Sir Edward and Donna. The neutral reportage defence was struck out, and the court found that one of the publications could not be defended as responsible at all and recorded its doubts about the rest of the Māori TV reporting too.
So Donna and Sir Edward’s appeal was not dismissed as Māori TV reported. The first clue was on the front page where the judges wrote “The appeal is allowed in part.”
A couple of last thoughts. First, this case is a Big Deal. This sort of defence only used to be available for coverage of politicians. Now it will be available for stories and commentaries criticising business leaders, public servants, lobbyists, journalists and others on any matters of public interest. It will affect almost every piece of defamation advice provided by a media lawyer. There will be much more emphasis on whether stories are responsibly prepared, and I’d hope that this will incentivise ethical behaviour: relying on reputable sources, conducting obvious checks, and seeking and including comment from the other side. I hope it will also make publishers consider whether they can genuinely claim that their stories are in the public interest.
Second, this case doesn’t just protect journalists. The defence concerns responsible communication in the public interest. It explicitly includes people publishing on social media. What counts as “responsible” behaviour by a blogger? The Court of Appeal said this was tricky, but that we can develop principles case by case. I suspect much will depend on the type of publisher – sites and blogs that look like mainstream media and report on news and current affairs to a wide audience in a substantial way will probably be held to higher standards of responsibility than someone who sends out occasional tweets slagging rugby referees.
It strikes me that the digital community should think hard about trying to formulate a voluntary social media code of ethics (and I’d suggest that it should revolve around rights of reply rather than an obligation to seek the other side before publication). This will be hard to develop; the needs of different online publishers vary a lot; plenty of people won’t want a bar of it; it will potentially be used as a rod for our own backs. But if we don’t do it, we’ll be leaving it entirely to the judges to define what counts as responsible.
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