The public interest defence to defamation

Scope of the new defence

On 31 July 2018 significant media interest arose from the Court of Appeal’s judgment in Durie v Gardiner [2018] 3 NZLR 131.  This was because the Court in that case recognised a new public interest defence to claims of defamation from published statements.  The new defence subsumed a previous public interest defence for the media that was only applicable in relation to parliamentarians and political matters.

To establish the new defence, the person who published the statements must prove that:

• The subject matter of the publication was of public interest; and
• The communication was responsible.

In assessing these two elements, the Court held that a judge should:

• “Step back and look at the thrust of the publication as a whole” in deciding if the publication was of public interest; and
• Have regard to “all the relevant circumstances of the publication” to decide if the communication was responsible”.

The Court provided examples of subject matters likely to be of public interest (such as a matter to which considerable public notoriety or controversy was attached), and listed a number of factors to consider in deciding if the communication was responsible (such as whether comment was sought from the claimant and accurately reported).  The examples and factors were not exhaustive.

Recent High Court case considering the new defence

The High Court considered this new public interest defence in detail in its 25 October 2018 judgment in Craig v Slater [2018] NZHC 2712.  This case involved various defamation claims by both Mr Craig and Mr Slater.  The judgment traverses a multitude of factual and legal points concerning defamation law.  However, in this newsletter, we consider the judgment only in relation to this new defence.

Toogood J considered the new public interest defence in relation to some of the statements on the Whaleoil blog.  The judge usefully summarised the defence as requiring consideration of the “public interest in receiving information, responsibly communicated, weighed against the damage caused to the target’s reputation by an untrue statement”.  As the public interest element was accepted by the parties, the only question was whether the responsible communication element was satisfied.

The judge concluded that:

• The same standard for the responsible communication of facts applies to bloggers, commentators, newspapers, radio stations and television channels;
• The author or publisher’s motivation is not relevant to whether or not the defence applies;
• A responsible communication is likely to exist if the publisher has:
  • “Undertaken an inquiry into the facts which is as comprehensive as the circumstances may reasonably require”;
  • Sought and accurately reported comment from the individual concerned; and
  • “Presented a balanced account and adopted a measured tone”;
• The court needs to:
  • “Determine what consideration the author gave to the accuracy of the statement before it was made”; and
  • “Assess whether any steps taken were what the circumstances reasonably required to meet a standard which has accuracy as one of its objectives”.

Key takeout

A key takeout from this judgment is a need to take appropriate steps to be certain of your facts and to seek comment from the individual before reporting a matter of public interest.  While that is our key takeout, in any particular case, all of the circumstances will need to be considered in any decision as to whether or not this defence is available to any published statement.

If you are in any doubt as to the steps you should take before publishing any statement we recommend seeking legal advice first.

If you want any further information on any of these matters please get in touch with your usual Lane Neave contact or a member of Lane Neave’s corporate team.

Business Law team

If you need any assistance with the sale or purchase of your business, do not hesitate to get in touch with the Business Law team at Lane Neave.

Gerard Dale, Claire Evans, Graeme Crombie, Evelyn Jones, Anna Ryan, Joelle Grace,  Peter Orpin, Ellen Sewell, Matt Tolan, Carlo Wan, Kristina Sutherland, Jacob Nutt, Whitney Moore, Alex Stone, Ben Cooper, Lisa Catto