Case Studies Flashcards
Example of even if the intentions aren’t to defame it can still have consequences
WHO? Christchurch Star sued by ex-girlfriend
WHEN? 1960s
WHAT HAPPENED? A bogus advertisement was placed in the classified columns, probably by an upset ex-boyfriend. He paid for a classified ad in gardening section re Oderings said “one shallow rooting johnson peroxide. Free with every purchase over $5” (Johnson was ex-girlfriend). Hoax advertisement.
COURT & SETTLEMENT? No one could prove it was him.
WHAT DOES IT MEAN FOR MEDIA? It showed that media is responsible for what it prints (or broadcasts) even if it knows nothing about what the content means. It was about it being on the media outlet even though it wasn’t their content.
Example relating to qualified privilege - only applies when in a meeting
WHO? Councillor Des King (at the Christchurch City Council) sued the Press
WHAT HAPPENED? Reporter’s story was about woman councilor signing off Des as a sleeze. Made her comments in council chamber which can be defended as qualified privilege but he amplified by interviewing outside. Included with other comments. Lost protection of qualified privilege. Could have tried a defense of truth.
The reporter covering it decided to be diligent and followed it up by seeking a quote from a council officer immediately after the meeting. The person referred to in the quote was not able to sue over what had been said about him in the meeting but did over what was said outside it.
COURT & SETTLEMENT? Defamation Action was initiated and that led to legal bills for The Press, but the action was eventually dropped without settlement or trial. One of the few cases in which a defamation proceeding actually got as far as a trial. But, as we all know, court proceedings are very expensive and eventually the complainant threw in his hand and went away.
WHAT DOES IT MEAN FOR MEDIA? It showed that reporters must be careful to stay with comments made within a meeting where they have qualified privilege, in order to use that protection. In this case, The Press mixed comments from inside a council meeting and outside the meeting.
Example of honest opinion defamation defense
WHO? Bob Jones vs filmmaker Renae Maihi
WHEN? February 2020
WHAT HAPPENED? Jones, 80, a property investor and writer, had written a column in February 2018 in the National Business Review. It suggested Waitangi Day be replaced with Māori Gratitude Day. He wrote: “I have in mind a public holiday where Māori bring us breakfast in bed or weed our gardens, wash and polish our cars and so on out of gratitude for existing.” Maihi took a petition which called him a racist and called for him to be stripped if his knighthood. 90,000 people signed the petition or contributed to her legal defence fund when Jones took action against her for defamation.
COURT & SETTLEMENT? High Court in Wellington. The trial ran for several days before Jones dropped it. He wrote: “I filed these proceedings because I was deeply offended by Ms Maihi’s allegations. I am not a racist. I now accept, however, Ms Maihi’s offence taking was a sincerely held opinion. The parties may never align on what is acceptable humour, however, no malice was intended by either, thus it is sensible to put an end to proceedings.” Apparently in return she dropped the petition calling for him to be stripped of high knighthood and asked for people not to be rude to him in social media postings about the case.
WHAT DOES IT MEAN FOR MEDIA? It was a good example of the defence of honest opinion. It illustrates the wisdom of not attacking someone who has a track record of taking legal cases and has the money to go all the way to court.
Example of defamation despite an “opinion” context as there were no facts
WHO? Mary McRae vs Metro Magazine “Felicity Ferrett” case. The Felicity Ferrett case in Auckland (FF was the then editor of Metro magazine, founded by Warwick Roger.)
WHEN? September 1992
WHAT HAPPENED? He wrote that “McRae has had her leg in plaster after she ‘slipped on ice’ outside her door in Mount Eden.
Ms McRae testified during the subsequent court case she had been absolutely devastated by the allegation which was particularly cruel and untrue. As a result, when she went to public functions she couldn’t lift up a drink because her colleagues used to bait and tease her about being a lush and a drunk.
The slipped on ice comment was particularly hurtful. At 6.10am one day, with her work bag in one hand and her dog’s breakfast in the other, she slipped over on her doorstep and broke her leg. It wasn’t funny, she said. Metro had made it seem she had slipped on an ice cube that had fallen from her glass. They argued that in the context of the column no one would take it seriously.
COURT & SETTLEMENT? But she said her reputation had been damaged and called people who agreed as witnesses. She said: “I used to go home and work on telephones there. I went into retreat, but kept on working.” The judge said she had been defamed and the jury awarded her $375,000 damages. This was later reduced to $100,000 ― which was not enough to cover costs and she ended up with a mortgage. But it would also have been preposterously expensive for Metro.
WHAT DOES IT MEAN FOR MEDIA? “argued in the context of the column no one would take it seriously”- but reputation was still damaged.
Example of defamation and the danger of malice
WHO? Driver in commonwealth games sued local radio station
WHEN? 1974 Christchurch Commonwealth Games
WHAT HAPPENED? The Commonwealth Games driver case. A radio station in Christchurch accused a women driver who was transporting athletes of “immoral behaviour”. Local radio station. Fleet of Holdens which had distinctive paint work. Assigned to run athletes from venues. Radio station ran a report that one of the woman drivers doing the delivery had been sacked for immoral behaviour (implication being “friendly” with the athletes). Woman said she was readily identifiable, all drivers knew who she was, she said it was spoken to lots of people who mattered and mattered to her.
COURT & SETTLEMENT? Complainant and respondent settled it before trial. Defamation trial is incredibly expensive. Lawyers and journalist spoke. Reporter was the ex-boyfriend. No defense for that.
WHAT DOES IT MEAN FOR MEDIA? It showed that you must not get yourself into a position where a court may conclude that in reporting something, you acted with malice
Example of truth and honest opinion not standing without proof
WHO? TVNZ vs Terry Quinn (past president of the Auckland trotting club)
WHEN? 27 February 1997
WHAT HAPPENED? The famous New Zealand case involving TVNZ and the Holmes programme on which untrue allegations were made that Terry Quinn, a past president of the Auckland Trotting Club was supplying drugs for doping horses and involved in financial scams at the Trotting Club.
COURT & SETTLEMENT? The case involved two Holmes programmes and a jury awarded a total of $1.5 million, a New Zealand record for any defamation case. However, TVNZ went to the Appeal Court which reduced the damages to a total of $650,000, still a considerable sum. The programmes defamed Quinn with the allegations alone without offering any proof - they rested solely on innuendo. The judge described TVNZ’s programmes as “a flagrant disregard of the plaintiff’s rights” - the plaintiff of course being Mr Quinn.
WHAT DOES IT MEAN FOR MEDIA? “The programmes defamed Quinn with the allegations alone without offering any proof - they rested solely on innuendo.” You need verifiable facts for truth and honest opinion.
Example of photos being defamatory
WHO? Police woman vs Press
WHEN?
WHAT HAPPENED? It involved publication of a netball picture of a Christchurch policewoman who was also a high-level player. She was properly dressed but the Press published a match photograph of her with her legs splayed as she caught or passed. There was a lot of her pants showing.
COURT & SETTLEMENT? The case never got to court and unfortunately, I do not know how it was settled
WHAT DOES IT MEAN FOR MEDIA? I believe it wasn’t exactly the publication that caused the issue, but what was made of it at the police station where it went up on noticeboards all over the building with very dodgy anonymous comments. Be aware of wider implications?
Also- photos can be defamatory
Example of qualified privilege applying even if the organisation is wrong
WHO? Ferrymead Tavern sued Press
WHEN?
WHAT HAPPENED? The paper had run a story that a brawl had occurred in or near the tavern, suggesting that the place was not well-run. Ferrymead Tavern where a stay application (stopping a legal proceeding) by The Press was successful because the details published – including the naming of the wrong pub – came from the police and were covered by qualified privilege. Ferrymead tavern had a go at press regarding police misidentification of racist violence. We had got the story from a statement issued by the police. Unfortunately, the police had got it wrong. The brawl involved another, different tavern nearby.
COURT & SETTLEMENT? Defamation action covered by qualified privilege. Communication from government department therefore qualified privilege applies. Never got to court. The Press won a defamation act brought by the owner of a suburban tavern
WHAT DOES IT MEAN FOR MEDIA? So the story was wrong and it was damaging. It was, however, found to be protected by qualified privilege. It was information that was in the public interest and it was released for the information of the public. The paper had published a fair and accurate report of what the police had released so we were covered by the privilege.
Example of not having facts to back up truth defence in defamation
WHO? Ray Columbus vs Truth
WHEN? 1960s
WHAT HAPPENED? As for incompetence for a job, one of the most notorious examples of that concerned the 1960s pop singer Ray Columbus. He ran an events company that provided half-time entertainment for rugby matches. Truth newspaper ran an untrue statement saying that he was unprofessional and greedy in his dealings with the rugby union and was ripping them off. In fact, he took a relatively modest fee and most of the payments were for legitimate expenses such as payments to the people involved.
COURT & SETTLEMENT? He won the one of the largest defamation payments in New Zealand history – about $750,000. He was able to show that the story had ruined his business. Columbus gave evidence that his phone simply stopped ringing.
WHAT DOES IT MEAN FOR MEDIA? Insinuations, truth
Example of allegations being made on social media as dangerous, ie. republishing
WHO? Chris Cairns vs Lalit Modi
WHEN? 2012
WHAT HAPPENED? This was brought home in a case brought by Chris Cairns against Lalit Modi, the head of the Indian Cricket Council, after Modi alleged in a Tweet that Cairns was involved in match fixing. Obviously, to accuse a sportsman of such corrupt conduct is defamatory.
COURT & SETTLEMENT? Cairns won £400,000 in a court action. Cricket info repeated the tweet on its website and settled out of court for £10,000.
WHAT DOES IT MEAN FOR MEDIA? Beware of Twitter. Allegations made on Twitter, even though they are only 140 characters long (at that time), can be defamatory and if you repeat them in a broadcast or elsewhere you may be liable.
Example of public interest defence for privacy
WHO? Dr Morgan Fahey.
WHEN? 1997
WHAT HAPPENED? Dr Fahey was well known in Christchurch. He was in general practice as a doctor in St Albans but among many other things, he was a trauma medicine expert and often turned out to the scenes of accidents. He was sought out for his views on road safety on gave talks to schools and other such places about the subject. In addition to all that he was a local body politician becoming, in the 1990s, deputy mayor of Christchurch. A respectable man, you might think. But he had a darker side. Dr Fahey was also commissioned to conduct medical examinations of airline staff, passenger cabin staff, for one of the international airlines. He took gross advantage of this position and gathered a reputation among stewardesses in particular as “Fingers Fahey”. He got away with this for a very long time, but gradually a growing number of complaints led the police to investigate. It also became more widely known and TV3 came to hear of it.
One of the complainants against Fahey went to them and they arranged a sting. TV3 gave the woman a video camera concealed inside a handbag and she made an appointment to go and see him. While there, she confronted him directly, accusing him of having assaulted her. Confronted in this way, he made what seemed to be an admission. TV3 then broadcast the material. Fahey tried to stop it. He sought an injunction, which is a court order saying it should not be broadcast. TV3 said that it would defend any such action on the ground that it was true and that it could prove it. Where this defence is available, the courts are very reluctant to issue injunctions. The rationale is that if TV3 wanted to take that risk and it turned out to be wrong and it could not prove the truth of its allegations, then any damage done to Fahey would be adequately compensated by the damages payment he would get (which in the circumstances, for such serious allegations if they turned out to be false, would be very large).
COURT & SETTLEMENT? The police were already investigating Fahey and he was in fact subsequently charged, not just with indecent assault against 11 women over the space of 34 years between 1963 and 1997 but also with the rape of a pregnant woman. And as it turned out there was no trial because at the last moment Fahey very unexpectedly admitted everything, pleaded guilty to the charges and was jailed for six years. He got out of prison in 2003.
WHAT DOES IT MEAN FOR MEDIA? Now there are a couple of questions I want to ask here. Do you think the hidden camera ploy was justified in this case? Are there any problems with it? Was there a public interest here? Public interest outweighs keeping it quiet. There can be cases where a sound public-interest argument can be made for using unorthodox techniques.
He was facing trial, very bold of TV3 (very much sub judice), sought an injunction to stop broadcasting and High court ruled although near the edge of permissibility didn’t rule it out because it was a truth defence in the public interest. Fahey had no option but to fold. Raises privacy issues, sub judice and defamation issues.
Example of privacy for celebrities and new common law relating to disclosure rather than the content
WHO? Broadcaster Mike Hosking.
WHEN? 2002
WHAT HAPPENED? Broadcaster Mike Hosking and his former wife took court action alleging a privacy breach to try to prevent New Idea running a freelance photographer’s photos of their twin daughters.
COURT & SETTLEMENT? The court accepted it was possible to sue, but both the High Court and then the Court of Appeal dismissed their claims and said the magazine could publish. It was something of a test case. If they had been successful, the action would have established a new law of privacy. They weren’t only seeking a one-off ban on use of a single set of photographs but sought a court order preventing New Idea publishing any photographs of their 18-month-old twins, without consent, until they reached 18.
When he rejected their case in the High Court, Justice Randerson was clear on the principle he had applied. He said: “Mr Hosking has deliberately courted publicity both before and after the children’s birth and he necessarily sacrifices, to a greater or lesser degree, the privacy ordinarily enjoyed by those who are not household names.” He referred to a magazine article where the Hoskings had talked about the fertility treatment which led to their twins’ birth. He said: “Where the fact of the children’s pending births has been deliberately placed in the limelight then, on any objective view, any expectations of privacy must be diminished.”
The Court of Appeal also unanimously ruled against the Hoskings, pointing out the twins were in a public place, so there could be no reasonable expectation of privacy. But the appeal justices, in a ground-breaking majority decision, recognised a new common-law right to privacy, still in use. It is the principle that people have a right to prevent unjustified public disclosure of information about their private lives, in circumstances where an objective reasonable person would consider the disclosure highly offensive.
WHAT DOES IT MEAN FOR MEDIA? What a complainant must prove. Essentially, the elements a complainant must prove to establish a privacy breach are that there has been, or will be: a disclosure of private facts, to the public, and that such a disclosure would be offensive and objectionable to an ordinary person. Notice a subtle point. The pictures or information do not have to be offensive and objectionable. It is the disclosure that has to be offensive and objectionable.
Example of disclosing private facts - intention of discloure
WHO? Dr Ranginui Walker
WHEN? 1990
WHAT HAPPENED? A station broadcast the email address and phone numbers of someone with a view to people contacting them and giving them their opinion about a matter where they had been caught out with some ill-judged comments.
COURT & SETTLEMENT? In the case mentioned, which is the Dr Ranginui Walker case in 1990, the BSA ordered the 89FM to pay $500 in compensation.
WHAT DOES IT MEAN FOR MEDIA? You must not disclose the name, address or telephone number of a particular person without consent. This principle does not apply to details which are public information, or to news and current affairs reporting. Radio stations are keen on “stunts” these days, and this sort of thing may arise from time to time. If you are calling or contacting someone on air, it may be safer not to disclose the number or email address you are using. Not with the intention of harassment. Intentions of disclosure, even if they are available say white pages they shouldn’t be done.
Example of privacy not being able to be defended if there is no clear offender/publisher.
WHO? Winston Peters
WHEN? 2020
WHAT HAPPENED? The NZ First Leader failed in a bid to sue the Attorney-General on behalf of the Ministry of Social Development (MSD), the ministry’s chief executive, the State Services Commissioner and former National Party ministers Anne Tolley and Paula Bennett last November. He alleged his privacy was breached when details of his seven-year national superannuation overpayment were leaked in 2017 by an unknown source to the media, weeks out from the election. In 2019, Peters told the court that details of his superannuation payments should never have reached ministers, and claimed the leak to journalists was a deliberate attack on his reputation. He claimed the Government departments and officials breached his privacy in advising the ministers of his superannuation, and accused the officials of being reckless and acting in bad faith, which the Crown denied.
Peters had sought $450,000 in damages from each of the named defendants, meaning a total of $1.8 million if he pursued all monetary claims listed in early court documents. In November, Peters accepted Tolley and Bennett were not the source of the leak or responsible for it.
In the April judgment, Justice Venning said Peters’ private information about the payment irregularity should not have been disclosed to media. Peters had a “reasonable expectation” that the details of the irregularity would be kept private and not disclosed to parties who did not “have a genuine need to know about it”. “This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm,” the judgment said.
COURT & SETTLEMENT? in April Justice Geoffrey Venning found the court was unable to pinpoint the source of the leak and Peters’ claims for damages and declarations were dismissed. If Peters could have identified who disclosed the information, damages in the region of $75,000 to $100,000 in total “might have been appropriate”, it said. But he could not make out a claim against any of the defendants and the case was dismissed.
Deputy Prime Minister Winston Peters has been ordered to pay more than $317,000 after his failed bid to claim damages over his superannuation details being leaked. In a judgment released to Stuff on Monday, Justice Venning ordered Peters to pay Bennett and Tolley $101,897.26 and $215,921.11 to the remaining defendants.
Brian Henry, acting on behalf of Peters, said costs should not be awarded as all defendants were funded by the Crown. However, Justice Venning dismissed this. “Mr Peters chose to pursue a private claim through the Court. While the case did involve consideration of aspects of the application of the Cabinet Manual, and actions of senior chief executives, I do not accept the case raised matters of sufficient public interest, outside Mr Peters’ personal interests, such that costs should not be awarded,” Justice Venning said.
WHAT DOES IT MEAN FOR MEDIA? No defamation because nothing was said. Just a leak of information. It was true (defense of truth). But the nondescript situation is what led to it. Benefit fraud.
