Cross Examination: Andrew Little & New Zealand's Defamation Laws

BY HANNAH YANG

The reach of qualified privilege as a defence to a defamation claim and the conflict between free speech and personal reputation has recently come under scrutiny by the courts once again. In Hagaman v Little, or the Andrew Little defamation case, as it is more popularly known, Clark J ruled that comments made by a person in their capacity as the Leader of the Opposition on a matter of public interest may be protected by qualified privilege.[1] This marks the first significant expansion of the law around qualified privilege since Lange v Atkinson in 2000, which held that the defence may protect publications concerning previous, current, or aspiring politicians.[2]The aim of this article is to provide a brief overview of defamation and its defences, to explore the development of qualified privilege around political statements in New Zealand compared to the United Kingdom, and to consider whether a wider approach ought to be adopted in light of the UK’s 2013 Defamation Act. OverviewA defamatory statement is generally a statement which tends to injure the reputation of a person.[3] The existence of this wrong derives from the idea that people are generally entitled to maintain their good standing in society, and not to have their reputation tarnished by false statements.There are four main defences to a suit of defamation:

• Truth
• Honest opinion
• Absolute privilege
• Qualified privilege

The defence of truth applies where the alleged defamatory material is, or not materially difference from, the truth.[4] Where the statement is a statement of opinion (as opposed to a statement of fact), the defence of honest opinion applies where the defendant can prove that it is their honest and genuine opinion.[5] Both of these defences are provided for in the Defamation Act.Statements that fall into neither category may still be protected if they were published under an occasion of privilege. This privilege may be absolute or qualified, depending on the occasion. Absolute privilege means that a false defamatory statement will be protected even if it was motivated by malice.[6] Such occasions include proceedings in Parliament and in courts or tribunals.[7] The rationale behind this is that on such occasions, it is in the public interest that parties have complete freedom to express themselves as they wish.Qualified privilege, on the other hand, may be defeated if it can be proven that the defendant was motivated predominantly by ill-will,[8] hence the term “qualified”. It is this defence that will be the focus of the rest of this article.Qualified privilegeThe scope of qualified privilege is governed by both statute and common law. While statutory instances protected by qualified privilege are limited to fair and accurate reporting of certain proceedings,[9] occasions which attract qualified privilege under the common law are much more open-ended.Traditionally, the common law test for qualified privilege has been the duty/interest test.[10] For example, employees have a duty to inform their employer about other employees’ conduct which are relevant to their ability to perform their work, and the employer has a corresponding interest to receive this information.[11] Therefore, communications made on such an occasion will be privileged, conditional on the absence of ill-will.A strict requirement for reciprocity, however, has been done away with by New Zealand courts. The Court of Appeal in Lange No 1 in 1998 observed that the real principles behind qualified privilege are focused around “social morality”, “public utility”, or “the common convenience and welfare of society”.[12] Indeed, Blanchard J went so far as to say that the circumstances to which qualified privilege might apply are “infinitely various”.[13] The question is therefore where the line is actually drawn, for it is of great importance that the law be predictable and not result in arbitrary outcomes.Prior to Lange, it had been held in Templeton v Jones that no special privilege attached to occasions where publications about politicians were made to the general public.[14] This was reversed in the Lange line of cases, where ultimately the Court of Appeal upheld the High Court decision of Elias J (now Chief Justice). Six conclusions were made:[15]

• Qualified privilege may be available for statements published to a general audience;
• The wider New Zealand public has a proper interest in generally-published statements concerning government and people elected into public office;
• There is a proper interest in particular in statements that bear on the ability of previous, current, and aspiring politicians to perform their public responsibilities;
• Which matters bear on that ability will depend on whether it is a matter of public concern;
• The width of this public concern justifies the extent of publication;
• The statement must be published on a qualifying occasion to be protected.

The effect was therefore an extension of the defence of qualified privilege to cover statements about former, current, and potential politicians. In doing so, the Court of Appeal rejected the then current UK House of Lords decision in Reynolds v Times Newspapers Ltd, which held that no generic qualified privilege attached to occasions purely based on its subject matter.[16] Instead, it established what became known as the “Reynolds privilege”, where protection was available if reporting on a public figure was done in a reasonable and responsible manner.Since then, the UK has abolished the “Reynolds privilege”, replacing it with a wider “public interest” test.[17] This has extended the ambit of qualified privilege beyond political discussion by media. Instead, it will be a defence to defamation simply if the statement was a statement on a matter of public interest, and the publisher reasonably believed that publication was in the public interest.[18]It was against this background that Clark J in the New Zealand High Court ruled in Hagaman that qualified privilege could be available to the Leader of the Opposition for statements made in the pursuance of their duty to hold the government to account. The importance of this decision is that the qualified privilege argued for on behalf of Andrew Little was a novel one.[19] Whereas qualified privilege on political statements was previously limited to statements about politicians, this ruling means that protection may also be extended to cover statements made by politicians about non-political parties, as long as the statements are relevant to a duty arising out of the politician’s position, and the public has an interest in receiving such information.The ruling also affirmed the importance of the role of the (now former) Leader of the Opposition and the principle of freedom of speech in New Zealand’s representative democracy. Firstly, her Honour observed that the role of the Leader of the Opposition entails the scrutiny of government, holding it to account, and the stirring of public criticism.[20] This gives rise to a distinct duty to communicate, and the public has an interest and indeed a right to receive this communication.[21] Secondly, the nature of New Zealand’s representative democracy is such that everyone has a right to participate in discussion, and this discussion will inevitably lead to statements that are injurious to people’s reputation.[22] While unfortunate, it is the price that society pays in order to maintain a healthy and robust democracy. That the law chooses to prioritise freedom of communication in certain contexts over individual’s right to maintain their reputation is for the “general good”.[23]A Broader Approach?The effect of Hagaman is therefore to expand the New Zealand position on qualified privilege since Lange. Narrow readings of the Hagaman ruling will confine it to apply only to the Leader of the Opposition, whereas a wider reading may point to the possibility of qualified privilege extending to any political figure with a duty to impart information. It is clear, however, that the subject of the statements no longer has to be a political figure.In contrast, the UK now allows qualified privilege in any situation where the publication is in the public interest.The question that arises, therefore, is whether New Zealand ought to follow suit and adopt a similar “public interest” test. The policy emphasis in Hagaman on the welfare of society and freedom of speech seems to point to this possibility, however it is clear that the legal test remains firmly on the duty/interest test. It is also worth noting that while it was acknowledged that the public interest is relevant when considering the reach of qualified privilege, a test based purely on public interest was explicitly ruled out by the New Zealand Court of Appeal in Lange No 1.[24] It would therefore seem unlikely that New Zealand would adopt such a wide-reaching approach in the near future.Up until this point, it has been assumed that the public interest test is in fact a broader approach than the duty/interest test that is applied to novel situations in New Zealand. One might ask, however, whether this is a sound assumption to make at all. Is the public interest test merely be a subset of a duty/interest scenario, or does it widen the category so as to catch situations where there is supposedly no duty on the part of the publisher? Does it dispose of the need for a duty altogether, or does it merely serve to create a corresponding duty in all situations where there is a public interest?While these questions may appear to be excessive and hair-splitting, they are important if one is to seriously consider the whether there is a need for further reform in New Zealand at all. In the meantime, further developments in this area of the law will be regarded with great interest.

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[1] Hagaman v Little [2017] NZHC 813.[2] Lange v Atkinson [2000] 3 NZLR 385 (CA).[3] Laws of New Zealand Defamation (online ed) at [40].[4] Defamation Act 1992, s 8(3).[5] Section 10(1).[6] Laws of New Zealand Defamation (online ed) at [88].[7] Defamation Act, ss 13–14.[8] Section 19.[9] Schedule 1.[10] Hagaman v Little, above n 1, at [21].[11] Watt v Longsdon [1930] 1 KB 130 (CA).[12] Lange v Atkinson [1998] 3 NZLR 424 (CA) at 441.[13] At 441.[14] Templeton v Jones [1984] 1 NZLR 448 (CA).[15] Lange v Atkinson, above n 2, at [10] and [41].[16] Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL).[17] Defamation Act 2013 (UK), s 4.[18] Section 4(1).[19] Hagaman v Little, above n 1, at [16].[20] At [38].[21] At [40].[22] At [62].[23] At [65].[24] At 442.