Māori Television leads new defence in defamation cases

By Te Kāea

The Court of Appeal has upheld Māori Television's right to responsibly report in the public interest.  The landmark ruling means that a defence of responsible communication on matters of public interest can be applied in New Zealand Courts for the first time.

The Court of Appeal also ruled the new public interest defence should be extended beyond media.

“… in light of new technologies which enable anyone to communicate to the world at large, it is a defence that should be available to all who publish material of public interest in any medium,” said the court.

The court recognised that significant changes in mass communication meant “statements can be published in seconds to a mass audience potentially numbering in the millions.”

It said the emergence of social media and citizen journalism had “radically changed the nature of public discourse.  Bloggers and those who comment on blogs, tweeters and users of Facebook and other social media are modern phenomena,” said the court.

Media Law and Defamation Barrister, Robert Stewart, said the ruling was significant.

“It actually provides more protection to anyone who publishes online particularly.  So it’s not just the traditional media that we know but it would apply also to bloggers and other people who publish online to a mass audience and again as long as they meet those two conditions what they're talking about is a matter of public interest and that they've what they've published has been done in a responsible manner they will satisfy the elements of the defence,” he said.

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.

Both Sir Taihakurei and Ms Hall sued Māori Television and its journalist for defamation.  They applied to the High Court to strike out the network's defence of neutral reportage and public interest.

But in 2017, the High Court upheld Māori Television's argument.  The ruling was appealed to the Court of Appeal by Tā Taihakurei and Ms Hall, where they conceded some form of public interest might now exist.

Today the Court of Appeal upheld Māori Television's right to argue the new public interest defence.

While the court said neutral reportage and a web story that was posted for a very short time could not be included in the new defence, the appeal from Tā Taihakurei and Ms Hall was dismissed.

Today’s judgement provided some guidelines on what might constitute responsible communication:

(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 — this was described in Torstar as a core factor because it speaks to the essential sense of fairness the defence is intended to promote. In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond.  Failure to do so also heightens the risk of inaccuracy. The target may well be able to offer relevant information beyond bare denial.

(f) The tone of the publication.

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

Today's ruling can still be appealed to the Supreme Court.  Otherwise the case returns to the High Court for trial.