The Law of Defamation in New Zealand – Its Recent Evolution and Problems

Abstract

In this paper the author discusses his personal experiences with the law of defamation, including his family ties, private practice work, American studies in the subject area, and his early attempts at law reform. The hazards of suing in defamation are substantial and can be disastrous personally and financially. Pleading and conduct of a defamation action offers extraordinarily difficult sets of challenges. The passing years have not made defamation cases any easier. In United States law, however, following the precedent in New York Times v Sullivan, public officials are required to prove actual malice to succeed in a defamation case. Historically, Australian and New Zealand cases show a propensity for politicians in both countries to sue for defamation. Comparing this to United States law, 42 percent of the plaintiffs in Australia and New Zealand between 1969 and 1978 would have had a more onerous case under US law.

The Defamation Act 1992 has had significant impact in reforming the law of defamation, most notable of which was the repeal of the provisions relating to criminal defamation. The recommendation stopping a plaintiff, in an action where there is a news media defendant, specifying in the statement of claim the amount of damages was useful in curbing gagging writs. The law of defamation interfered too much, in the author’s opinion, with the freedom of the media by imposing a form of strict liability upon it. But that said, the author also believes that New Zealand media has a way to go to improve on its weaknesses. Democracy under MMP requires a well-informed electorate and the media is the main vehicle for the reticulation of information. Politics in New Zealand tends to be reported as a variety of sport or theatre with dangerously little policy analysis of the choices made of those rejected. Alongside legislative reform, the common law has relaxed the defamation law to some extent.

The final section of the paper considers the implications of the modern media industry, which has increasingly become corporatized into large multinational media companies. The ownership of the New Zealand media, coupled with journalistic concerns about cost cutting, are current realities that the policy governing media regulation needs to take into account. The paper discusses the enterprise liability approach undertaken in American tort law for dangerous and defective products, and whether such an approach ought to be applied to defamation law. It then turns to the Commonwealth courts, finding that whether by common law development or by legislation, new principles can be applied to defamation law that better suit the realities of the industry that generates defamatory statements. That said, the emergence of the celebrity culture seems to be changing attitudes to defamation law.

The author does not propose any further efforts at present regarding reformation of defamation in New Zealand. The empirical evidence does not suggest the current law is inhibiting freedom of expression unduly. The structure of the current media industry does not suggest they need protection. While there are attractions in moving to a different theory of liability, the author is doubtful that the solution would be accepted. Finally, if the trends in the developing proliferation of media outlets, blogging, the internet and web-based news continue, coupled with the emphasis on “infotainment”, it seems possible that the tort of defamation will fall into disuse over the next thirty years.

Keywords: defamation, New Zealand defamation law, New York Times v Sullivan, free speech, MMP, media law

JEL Classification: K13