Defamation Defence - Public Interest communication Flashcards
What is the public interest communication defence?
This is a defence that can be used by anyone to have some leeway for getting things wrong. Otherwise if the bar was too high the media simply wouldn’t even try (Chilling effect)
What is something that is considered in the public interest?
Things that will affect our welfare – eg politics, how decisions are made,
Conduct and business – eg of an industry
– eg someone not living their values, someone not being fit for office, health records of president
Wrong-doing – someone being harmed – is something we might have a public interest in
What is something considered not in the public interest?
Someone’s sexuality, affairs of private citizens, small/trivial gossip, stuff that doesn’t need to be exposed gratuitously
What does Durie v Gardiner (2018) NZCA 👥 say about what is in the public interest?
Determine what is in the public interest is a “notoriously difficult exercise”
It should be about something “inviting public attention” something of “substantial concern” “affecting the welfare of citizens” or “of considerable notoriety/controversy”
You have to look at the whole article to determine if the subject is in the public interest - and each item doesn’t necessary need a separate justification
What are the two requirements set out in Durie 👥 for this defence?
Two requirements (set out in Durie)
1. The subject matter of the publication was of public interest and
2. That the communication was responsible
(the defendant bears the onus of proof on both issues)
Who determines whether a communication was responsible?
The Judge - who does this by looking at all the relevant circumstances
Theseriousnessof the allegation – the more serious the allegation, the greater the degree of diligence (the more careful)required to verify it – but the greater the public interest is
The degree of public importance
The urgencyof the matter – was it imperative that the public found out about when they did? (e.g. if the election is next week, and the subject is the honesty of a politician, then it will be an urgent matter)
The reliability of any sourcerelied on (e.g. chief executive of gov. dep will be worth more than an anonymous tip off)
Whether the defendant soughtand accurately reported any commentfrom the plaintiff
The toneof the publication. (how was it communicated, how responsible was it)
Whether the publication included defamatory statementswhich were NOTnecessary to communicateonthe matter of public interest. In other words, whether the defamatory statements were necessary. (aka they put extra stuff in that wasn’t necessary – what was the vibe)
The seven steps for working out if something is in the public interest, is it an exhaustive list
NO this is NOT a checklist or an exhaustive list – not all these factors will always be relevant and sometimes other things will be relevant eg if there might be a time where a forensic account or expert is needed)
* These factors must be applied practically and flexibly (eg taking into account practical realities)
What are the facts of Durie v Gardiner (2018) NZCA 👥
Gardinar was sent an email and minutes of Maori Council exec meeting which contained a number of allegations about the plaintiffs (high court judge and lawyer couple).
The news reported published a story saying that Hall’s firm was dropped by the Council for a conflict of interest with Durie as the couple was “whipping up hatred”
- The television version of the story included a statement of refutation from Hall – the refutation was NOT included in the story put on the Website
The defendants asked for the Court to strike out the public interest/qualified privilege defence.
What is neutral reportage?
Neutral reportage is a subset of the public interest defence
(The minority of Durie said it should be a separate defence)
It is an exception to the repetition rule (a person cannot escape liability for defamation simply because they are repeating something that someone else said)
And only applies when the public interest in in the “fact that the allegation was made, rather than the truth of its contents”.
When is the truth of an allegation more interesting than the truth of the contents?
Eg.
* You are calling out someone making the statement for bad behaviour or bullying
* You are calling someone for being mentally unsound
* You are exclaiming the fact that someone even said it
If someone uses the neutral reportage defence what will they have to prove
If the defence is applied the publisher may be relieved of proving the usual truth of the contents and will now have to verify the making of the allegation
When will neutral reportage be established Durie 👥?
It will NOT be readily established - as often the interest is in the contents not the allegation
The court will consider whether the publishers made it clear that they do no “subscribe to any belief in the truth of the allegation and have not adopted it as their own. (Durie)
- This will depend on factors eg whether the source of the information is disclosed in the publication AND the tone of the publication including with allegations have been embellished
DO NOT HAVE TO ESTABLISH A DISPUTE
Why is neutral reportage a subset of public interest?
It relies on the same two elements (subject was a public interest + responsible communication)
- It’s basically all the same BUT for the public interest is in the fact that the statement was made NOT its contents
- OTHER questions which bear on responsibility eg timing, tone source, will ALL still be relevant (all of the 7 things in the list)
Christian v Bain [2023] 🚮 😠 NZ
Facts: An article alleged that a large waste management company (closely associated with the plaintiff) had been engaging in illicit practices when tipping commercial waste and had been substantially underpaying for waste dumped there
- The main source of the story in the article, Bain, was a competitor with a history of tension with the defendant
- Christian challenged the reliance on the public interest defence on the basis that Bain was motivated by malice towards him
What did the court in Christian v Bain [2023] 🚮 😠 say about malice and the public interest defence?
- The court agrees with Durie – that a person who is motivated by malice MAY nonetheless act properly by taking objectively reasonable steps to verify the accuracy of the publication
- The existence of malice may, however, affect the factual analysis of whether enough verification efforts were made in the circumstances
The defence was made out
