Court of Appeal widens defamation defense
The Court of Appeal has widened the qualified privilege defence to defamation to cover material in the public interest, beyond previous restrictions to coverage of politics, in a finding on a case relating to Māori TV from 2015.
The court was considering an appeal by Edward Durie and Donna Hall over a 2015 story broadcast by Māori TV and published on its website about infighting at the Māori Council and the false allegation that the council dismissed Hall in its proceedings regarding the Trans-Pacific Partnership Agreement. Māori TV argued the publications were covered by qualified privilege as they were “matters of public interest” due to the Council’s prominent role in Māori affairs.
In an interlocutory decision from the defamation case brought by Durie and Hall, the High Court said Māori TV was able to use two defences – that the case was classified as reportage; and that the first website story, which didn’t include a statement from Hall, was covered by a defence of public interest. Today, the Court of Appeal struck out those defences.
The court said there was a “fundamental failing” in Māori TV not publishing Hall’s statement with its first web story, and it did not clearly convey that the claim of Hall’s dismissal as legal counsel on the TPP action was an allegation by a third party.
Beyond the case, the court has created a new defence to defamation, replacing the qualified privilege defence that existed for coverage of parliamentarians or political issues. That defence came from the landmark Lange v Atkinson ruling in 1998, where the Court of Appeal affirmed that qualified privilege covered publications about the behaviour of publicly elected officeholders and those seeking such office.
“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,” the court said in a decision published this afternoon. “Although the existence of such a defence was rejected in Lange, we consider that subsequent societal and legal developments justify recognising it now.”