DEFENCES

Question 1

Defences

Answer 1

Innocent dissemination

Consent

Truth

Honest opinion

Privilege
- developed from this PUBLIC INTEREST DEFENCE

Question 2

INNOCENT DISSEMINATION - vizatelly/ s 21

Answer 2

Common law defence aimed at news papers sellers, librarians and book sellers - not extended to printers of defamatory information

Case law defence which arose because it was seen that some parties liable in defamation should be seen to have a defence of their own because they were disseminating information in an innocent way and there was no negligence on their behalf (vizatelly)

Vizatelly requirements - must be: innocent of any knowledge of the libel, nothing in their work which led them to suppose it contained a libel, not by negligence that he/she didn’t know it contained a libel. No knowledge or ought to have known = defence

Now contained in s 21 defamation act which copies the requirements of vizatelly
- note: distributors and processors may sometimes be able to claim contribution from others liable

• IS A POSSIBILITY this could apply in relation to publication on the internet - people argue they are ‘innocent dissemnitators’. Hasn’t arisen yet but possibility

Question 3

CONSENT, s 22

Answer 3

Consent is a complete defence to proceedings for defamation

TWO requirements - whether the plaintiff consented to the publication, and whether they knew they were consenting at the time (Mihaka)

E.g member of a club who consents to the rules - that being to publish a journal on the club committee (chapman)

Proof of consent must be clear and convincing - must show not just consent but that plaintiff consented to publication in this way

Question 4

TRUTH s 8

Answer 4

Complete defence of words complained of were true, regardless of motive - both literal meaning and inferences must be true

At common law formally known justification but renamed and preserved under s 8 defamation act- restates the common law defence (television nz)

Burden of proving truth is on the defendant

Question 5

TRUTH - STING OF THE DEFAMATION

Answer 5

Will succeed where the defendant proves the imputations contained in the publication of were true or not materially different from the truth (s 8(3)(a))

Doesn’t have to be proved to the fullest, allowed to get minor facts wrong and still have this defence (Alexander)

Defendant must prove sting of the defamation

Minor details that are inertial will not defeat the claim (Lange)

Where there is a common sting arising from several defamations, and the plaintiff has chosen to rely on one and she on it, the defendant can prove the truth of the sting by referring to statements which the plaintiff did not complain of

Question 6

TRUTH - PICK AND CHOOSE RULE

Answer 6

Under common law where several distinct allegations were made about the plaintiff, they could sue on them specific allegations provided they were severable from the others (Templeton)

Overturned by s 8(2) Act - defendant may allege and prove any facts contained in the whole of the publication

Pick and choose rule no longer exists (Haines)

Where the statements are distinct and severalable, the defendant may now seek to prove the truth of those not referred to by the plaintiff and establish truth - may succeed if the defendant proves the truth of some allegations in the publication where it can be taken as whole or in substance not to be be materially different from the truth (s 8(b))

Question 7

TRUTH

DIFFERENT MEANINGS

Answer 7

English and Australian courts have taken the view that even though the plaintiff may plead one meaning, the defendant is entitled to plead the words have a different meaning and plead the truth of that (Lucas box, Polly peck)

The New Zealand courts have been less generous and have taken the view that the defendant may only plead the truth of the publication in the sense complained of by the plaintiff (CRUSH). In New Zealand, defendants are confined when arguing truth to the meanings pleaded by the plaintiff and accepted by the court. This position in common law as represented in crush has prevailed even after the introduction of s 8 (Haines)

Question 8

HONEST OPINION, ss 9-12

General requirements

Answer 8

Honest opinion used to exist at common law, now contained in as 9-12 of the Defamation Act

An individual has the right to express an opinion on something. Provided that opinion is honestly held and the facts are right. It doesn’t matter how unusual or damaging the opinion is (Silkin), speaker is entitled to it can be a good defence against defamation

REQUIREMENTS: must be an opinion, the facts on which the opinion are based must be accurate and the opinion must be genuine

HAS TO BE A MATTER OF OPINION. If it is fact - truth defence

Question 9

HONEST OPINION

1. Must be an opinion

FIRST ASPECT - CAN ONLY USE IT IN RELATION TO AN OPINION

Answer 9

Statements must be expressed as comments or opinions rather than bald facts (Newton)

Two main types of opinion - value judgements and criticism (criticisms, reviews etc)

Inferences or conclusions from fact

Question 10

1. Value judgements and criticisms

Answer 10

• general requirement is that the subject matter on which the judgement is based be sufficiently identified in the statement to allow the reader to locate and judge the matter for themselves

Kemsley: the question is how heather can there is a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action

To support a value judgement or criticism - has to be facts stated in the review

Question 11

2. Inferences or conclusions from facts

Answer 11

The test is whether the statement could be understood as an opinion, not what was intended by the person making it. Any final statement must clearly be the opinion of the writer and not another statement of fact (e.g political columns - commentators present what has happened then draw their own conclusions)

Where the speaker sets out the facts correctly and then gives their inference, stating it to be an inference from those facts, such inference will be deemed a comment (odgers, libel and slander)

Question 12

Newspaper headlines (a word)

Answer 12

Can be quite sensational, intended to draw the reader in. Is always a risk here when newspaper headlines are like this that is one be able to be defended as an opinion

Question 13

Honest opinion - role of judge and jury

Answer 13

Whether a statement is fact or opinion is a question for the jury unless there is absolutely no case for classification as an opinion

Question 14

Honest opinion

2. The facts on which it is based must be correct

Answer 14

The standard is the same standard for a defence of truth - must be true or not materially different from the truth to success (David Soul) - play review subcontracted, all lies, defence couldn’t be used

The inquiry is whether the subject matter has been indicated with sufficient clarity to justify comment being made.

Where facts are implied as a substratum of fact, this may be sufficient, the defendant may not need to set out and justify every fact to succeed, especially where information is well known to the public (Kemsley)

In the leading English case, Spiller - UKSC went further and held that in recognition of changes to the societal base of shared information brought about by technology, where comment is often not supported by detailed information but by reference to shared experience, the requirements for the factual basis for comment may be in general terms only.

New Zealand has followed the Kemsley approach and specifically put it into legislation in a 11 of the Defamation Act - defendant not required to prove the truth of every fact if the opinion is shown to be genuine having regard them i the facts proved to be true or not materially different

Question 15

Honest opinion

3. Opinion must be genuine

Answer 15

S 10 - defence shall fail unless the defendant proves the opinion expressed was the defendants honest opinion

Opinion can be one which an honest man holding strong, exaggerated or even prejudiced views could have held (Awa). Mere fact an opinion is expressed in strong language is no enough to impeach its genuineness. However extravagant language may lead the court to believe it was not genuinely held (Cornwell)

Onus is on defendant to prove the genuineness of it.

Matters would could be relied on to cast doubt on the genuineness - ulterior motive (Berkoff), bad relations in the past, the prominence given to the publication, the fact the original proofs of the offending article had been altered by leaving out matters favourable to the plaintiff.

Question 16

Honest opinion

S 10(1)

Answer 16

Where the defendant IS the author of the opinion, he/she has to prove that the opinion was his/her genuine opinion. The onus of probing such is on the defendant, the test is subjective. This relates to the originator or also a media publisher who is said to adopt as its own opinion the article

Question 17

Honest opinion

• Hubbard, s10

Answer 17

Hubbard: s 10 contemplates three situations -
10(1) - defendant is the author

10(2) - covers situations where the person sued is not the person who expressed or originated the opinion

Two situations arise here -

1. Where the defendant is not the author but where the author was an employee or agent of the defendant. In which case, the defendant must prove that the opinion did not purport to be the opinion of the defendant and that the defendant believed it was the genuine opinion of the author
2. Where the author of the matter containing the material was not an employee r agent of the defendant media publisher. In such case. The defendant must prove that the opinion did not purport to be its opinion or that of any employee or agent and the defendant had no reason to believe it was not the genuine opinion of the author. E.g a letter to the editor: Arnold

Question 18

Honest opinion

Joint publishers

S 20

Answer 18

Where two persons are jointly responsible for a publication, lack of genuineness on behalf of one of them does not affect the other using honest opinion

Question 19

Privilege

Answer 19

Can be absolute or partial defence
- absolute (complete defence)
- qualified (can be defeated by ill will or
Improper advantage)

This is a situation where statements are deemed to be privileged because the law has decided in some situations it is more important to speak out even if they are mistaken or dishonest. It is the OCCASION that is privileged rather than the person

Question 20

Absolute privilege

Answer 20

Complete defence even where statements were dishonest

1. Statements made in parliamentary proceedings
   - proceedings in the HOR are protected by absolute privilege
   - exists to ensure members of parliament are not inherited from speaking freely or fairly (Prebble) - HOR is done for the purposes of democracy and freedom of expression is important to this
   - s 13: extends to parliamentary proceedings
   - not protected if an MP ‘effectively repeats’ something said within the house (Jennings, Hyam)
2. Statements in judicial proceedings
   - anything said or done in judicial proceedings is absolutely privileged - all pleadings also covered
   - judge, jury, counsel, parties, witnesses

Question 21

Qualified privilege

Answer 21

Differs from absolute privilege -
- can be defeated. Under defamation act s 19, defence will fail if plaintiff proves the defendant was motivated by ILL WILL OR IMPROPER ADVANTAGE when publishing - onus is on the defendant

Question 22

Qualified privilege

- common law

Answer 22

Exists at common law in circumstances described by HOL as an occasion where the person making the communication has an interest or duty, either legal or social or moral to make it to the person whom has a corresponding interest to receive it (Adam)

Defence not available to prevent media from print gossiping (Templeton) - public has no interest in receiving it, media has no duty to purvey rumours and inaccurate information

Question 23

Qualified privilege

- defence against attack

Answer 23

A species of duty/interest qualified privilege

A person whose character has been attacked is entitled to answer such attack and any defamatory statements he makes about that person who attacked him and I’ll be privileged, provided they are relevant and bona fide (Gatley)

Must not be motivated by malice and must not go further than reasonably necessary for defending oneself

Allowed to counter punch (Alexander)

Question 24

Abuse of privilege

Answer 24

Qualified privilege will be lost at common law if the occasion is abused by the defendant - e.g ulterior motive for publishing (s 19(1), Lange)

Question 25

Developments from qualified privilege

Answer 25

Has developed hugely in recent years, especially around constitutional privilege.

The Lange decisions extended the common law defence to cover political discussion or statements made about MPS published to a wide, even nationwide audience, creating a seperate defence.

However effect of these decisions has almost completely gone due to recent developments - similar matters arose in a number of jurisdictions, NZ went much further

Question 26

Developments from qualified privilege

UK

Answer 26

At the same time as Lange, the decision of Reynolds extended qualified privilege to general publication about any matter of substantial public concern - defence has not been abolished (Defamation Act 2013, s 4(1))

Question 27

Developments from qualified privilege - Canada

Answer 27

In Canada, in Torstar, the SC of Canada significantly modified the common law by creating a general
Public interest defence know as ‘responsible communication on matters of public interest’. To succeed, the defendant had to show the publication was a matter of public interest and there was responsible communication on it

Question 28

Developments from qualified privilege - NEW ZEALAND

New public interest defence replaces Lange 2018 - two new versions - public interest defence, and neutral reportage

Answer 28

Heavily influenced by Canadian developments, the court in NZ recognised a new public interest defence replacing Lange with two versions -

The first, a powerful new defence called responsible communication on matters of public interest in Durie

THE TWO MAIN REQUIREMENTS OF THIS are that the publication must be in PUBLIC INTEREST and the communication MUST BE RESPONSIBLE

Public interest - one inviting public interest or which the public has a substantial concern in

Responsibly communication - determined having regard to: seriousness of the allegation, degree of public importance, urgency of the matter, reliability of the source, whether comment was sought from the plaintiff and reported accurately, the tone of the publication (was defamatory material necessary), wheTher COMMENT FROM THE PLAINTIFF was sought AND INCLUDED

• Durie, comment sought but not included, defence failed
• Slater - no attempt for comment, couldn’t use the defence

Question 29

Qualified privilege

• reportage also adopted in NZ

Answer 29

In Durie, the majority went further and recognised a special form of public interest defence known as reportage

In NZ, where the public interest concerned lies in the fact the allegation was made rather than the truth of its contents led a publisher may be relived or responsibility of attempting to verify its contents as distinct from verifying the making of the obligation - what is important is verifying the making of the allegation.

In this case the court said a publisher would be relived of usual responsibility of attempting to verify contents because courts recognise the public interest is in knowing an allegation has been made

Courts will also consider whether viewing the publication as a whole, the publishers made it clear they do not subscribe to any belief in the truth of the allegation and have not adopted it as their own - the reporting has to be ‘neutral’ - tone of allegations, whether they have been embellished, whether the source of the information is disclosed

• very limited form of public interest defence which may be useful in circumstances where a party wants to let the public known that an allegation has been made and wants to do it in a neutral way - protects the disinterest repetition of an allegation

Question 30

Statutory qualified privilege

Answer 30

Some statutes confer qualified privilege on certain types of statement:

Defamation Act - s 16 provides that the publication of reports and matters contained in sch 1 of the Act is protected by qualified privilege IF the publication is without ill will or the defendant has not taken improper advantage of the occasion (s 19)

• particularly useful for media

Statutory privilege of two kinds/
(I) statements privileged without explanation (stronger) - part 1 of sch 1 of defamation act confers privilege on four types of report
See clause 4, clause 5, clause 6, clause 7

(Ii) Statements privileged (subject to restriction)
Confers privilege on a large variety of other reports - again applies to a list of situations of reporting set out in the scheme.
- two further requirements, see s 18 and 23, see 18(2)

Reports and matters which this form of privilege attached to under part 2 sch 1 Act; 
- fair and accurate reporting of: 
Government inquiries 
Proceedings at public meetings 
Local authority meetings 
Trade, sporting, scientific bodies 
International organisations 
Press conference of bodies who are privileged

Question 31

REMEDIES

Answer 31

Damages

Injunction

Declaration

Retraction/ reply

Correction

5

Question 32

Damages

Answer 32

Normally compensatory and intend to restore the plaintiff to the position they would be in had the defamation not occurred

Intended to cover injury to reputation, natural injury to feelings and grief and distress caused by the publication not limited to any monetary loss which can be proved

If plaintiff has suffered material loss which is capable of being estimated as money, it may be claimed as special damage - loss of a job, business.

Normal rules of remoteness apply. McManus - the originator of a statement can be pursued as responsible for all the damage that flows from the publication, only in terms of remoteness - e.g statements by media publisher widely, originator can be responsible - where it can be foreseen that the statement of an individual will be picked up and published by others, liability can be sheeted home to the originator (Slater)

Quantifying - list of considerations

• defendants behaviour up to and during the trial (Colombus)
• allegations of a minor kind will not attract significant damages
• extent of publication - lesser people, less extent of damage (Colombus)
• aggravated damages also available - defendants behaviour may aggravate damages
• plaintiffs social standing, public figure will inevitably get more (Colombus)
• mitigation of damages - defendant can ask that things be taken into account to mitigate damages e.f apology Wright

Exemplary damages: in exceptional circumstances may be awarded. Damages are not compensatory, purpose is to punish the defendant
Rare and where awarded, should’nt be large (Quinn)

Level of damages - in NZ damages range considerably in exceptional cases have been very high (Colombus, KARAM, Stiassny)

Question 33

Injunction

Answer 33

Injunction to prevent publication of continuance of publication is a possible remedy
- Mount Cook, permenant injunction was issued to stop further defamatory posters

Interlocutory injunctions may be granted where there is no doubt whether the words are defamatory (Ron West)

Question 34

Declaration

Answer 34

S 24 permits a plaintiff to seek a declaration that the defendant is liable to the plaintiff in defamation

• plaintiff doesn’t seek damages, simply a pronouncement by the court that a defamatory statement was made about them - redressed injury to plaintiffs reputation

Illustrates the importance of a plaintiffs reputation (Willy)

Question 35

Retraction/Reply

Answer 35

Always open to a defendant to agree to publish a suitable statement by way of retraction/correction or apology with or without the payment of money in settlement or a claim. Out of Court settlements of this kind occur frequently, where agreed by both sides, they are binding contracts

Defamation Act - ant person who claims to have been defamation may, not later than five working days after becoming aware of the publication, request the defendant publish a retraction or reply

Question 36

Correction

Answer 36

Plaintiff may seek a recommendation from the court that the defendant publishes a correction of the subject matter and the court may make such recdomendation

In making a reccoemdarion the court may include matters relating to contents, time, prominence to be given

Made in Newton- small community; court reccomend the correction be sent to each letter recipient and a publication in two local newspapers

Intention was to encourage the parties to settle the matter without damages and to allow vindication of reputation to take place quickly