Defamation Defence - Truth Flashcards
What is the truth defence?
The truth defence is the GOLD STANDARD, aka it is complete defence that the defendant can use. That if they can prove a statement is true than they will succeed.
- This includes any imputation, including innuendo of the words
IT IS VERY HARD
Why is the truth defence problematic?
- Journalists may not want to reveal their sources
- It might be hard to find sufficient compelling evidence to prove
- Some statements are harder than others to prove true (eg sweeping statements or generalisations)
Templeton v Jones 1984 🗳️🏛️NZ CA
Facts: Bob Jones started a political party and was a bit of a dick. Templeton was a national party member. Templeton wrote a speech and he passed it around, eventually reaching the main media.
In the speech Templeton described “Mr Jones is a man who despises many people…bureaucrats, politicians, women, Jews and professionals”.
(Jones is suing Templeton only on the matter of hating jews)
What was Mr Templeton’s defence?
Templeton tried to use the defence of truth BUT Jones was only suing him based on the comments about Jews
Templeton tried to present a range of evidence to plead all the other things e.g. that he also hated women.
- The evidence on antisemitism was considered insufficient
What did the Judges rule in Templeton v Jones 1984 🗳️🏛️?
That you can use the pick and choose rule - that if a publication makes several charges against the plaintiff, he IS entitled to sue on only one charge only
AND
That you canNOT adduce evidence in respect of the other allegations in a publication
How did the law develop in response to Templeton v Jones 1984 🗳️🏛️?
1992 Defamation Law
Section 8 Truth (2)
In proceedings for defamation based on only some of the matter contained in a publication, the defendant may allege and prove any facts contained in the whole of the publication. (Expressly overrules Templeton v Jones ruling)
AKA The defendant is now entitled to adduce evidence in respect of the other allegations
section(3)(a)
A defendant will be successful if they prove that the imputations were true, or not materially different from the truth; OR
section(3)(b)
The publication taken as a whole is substantially true or not materially different from the truth
(attacking the pick and choose rule)
What would Templeton argue under the new defamation Act
That under Defamation act section 8(3)(b) that the article as a whole was substantially true
- That using an umbrella meaning Mr Jones was engaging in the politics of hate
- And that this could be proven by the evidence put forward by the other allegations
Under the new Defamation Act what would Mr Jones argue?
Mr Jones would put forward that the umbrella meaning could not support the allegations, that there were three different meanings
1. Bureaucrats, politicians, professionals - person’s job
2. Women - misogyny
3. Jews - national identity/religion
Therefore the publication is severable and could NOT be ‘taken as a whole’ and therefore wasn’t substantially true.
It is likely that Templeton v Jones would be decided in the same way.
What is something NOT materially different from the truth (3a of the Defamation Act section 8)?
When the ‘sting’ (the defaming element) is the same
(Sutherland v Stopes 1925)
If you say: Marcie took a saddle from my stable on March 6th and sold it the next day and pocketed the money
It doesn’t matter if Marcie took the saddle on the March 7th and sold it a week later,
What is something that IS materially different from the truth (3a of the Defamation Act section 8)?
When the ‘sting’ is severable/different.
If you say: The plaintiff spent 15 years in prison and had 31 convictions.
It DOES matter that he actually only spent 1 year in prison.
As the ‘sting’ is different and indicates a worse crime
Mikaha v Wellington Publishing Co [1975] -> If the one bit that is particularly damaging that doesn’t fit with the rest then you CAN’T say as a whole was in substance true.
What are the facts of BCNZ v Crush (1988) 🏞🚩?
The parties were arguing over the meaning which should be taken from BCNZ’s article about the sale of land at an overvalue in Omaru
- The plaintiff (Crush) argued that the article suggested that he was able to make this deal because of his connections with the labour party
- The defendants (BCNZ) said the broadcasts did not support the meaning alleged by the plaintiffs and tried to set up alternative meanings and show that those alternative meanings were true
What did BCNZ v Crush (1988) 🏞🚩 say about meanings?
The defendants in Couch wanted to put forward their own meaning - that the article implied that the plaintiff had made a shrewd business deal
BUT
the judges were not having it, that instead the plaintiffs must “nail their colours to the mast”, for the defendant’s benefit
AND therefore you cannot plead an alternative meaning
TVNZ v Haines 2004 HC 📺👷♂️ facts?
Facts:
- The defendants (TVNZ) broadcast a programme critiquing the plaintiff’s (Haines) work on a house relocation
- The two parties wanted to put up different meanings
What did the defendant’s in Haines 📺👷♂️ try to argue about section 8?
Defendant’s tried to argue that section 8 of the defamation Act had overruled Crush and now you can plead an alternative meaning:
And because the defendant could show that the imputation was true or not materially different meant they could plead an alternative meaning which was “not materially different” from the plaintiff’s pleaded meaning.
But section (3)(a) is only in relation to pleading in relation to the plaintiff’s pleaded meaning, providing more leeway
NOT ABOUT DEPARTING FROM THE PLAINTIFF’S PLEADED MEANINGS
Section 3b was not what was being argued in this case - but is potentially inconsistent (as setting up an umbrella meaning could be said to be creating a new meaning)
SECTION 8 is NOT overruling crush
