Media ungagged after seven month legal battle

Chapman Tripp acted for Newshub owners Warner Bros. Discovery in the proceedings.

The case Dew v Discovery NZ Ltd¹ illustrates two points of public interest:

• The principle that prior restraint of the media (prevention from publishing on the basis of defamation) should be available only under exceptional circumstances; and
• The ability of people with power and money to use the court system with the effect of frustrating or delaying the reporting of material that may be damaging to them. 

We trace the chain of events through the High Court and the Court of Appeal to the Supreme Court and provide a brief commentary on the significance of the various decisions made during the course of the litigation.

Background

Newshub was approached in May 2023 by a brother and sister who had lived at a Catholic orphanage in the Lower Hutt for a period in the 1970s and now had recollections of being sexually abused there by then Father Dew and another priest. They had also gone to the Police.

Four days before Newshub was to broadcast the item, it went to the Catholic Church and Cardinal Dew for comment. Cardinal Dew sought an urgent interim injunction from the High Court claiming that:

• The allegations were false and publishing them would amount to defamation;
• Publication, together with the fact that the Police were investigating him, would invade his privacy; and
• His rights to a fair trial would be jeopardised and the potential to get name suppression would be rendered redundant.

Chapman Tripp comment

Threshold for gagging the media

The three decisions (High Court, Court of Appeal and Supreme Court) confirm that, in reputation-related claims, prior restraint will only be granted if the party can demonstrate that there is no reasonable possibility that the media could establish a defence.

That said, the Supreme Court’s decision was not a full-throated endorsement of this principle, as the Court left open the possibility that the threshold could be challenged in “an appropriate case”².

Gagging tactics need to be addressed

The broadcast was first scheduled for 7 August 2023 yet, despite his injunction application being dismissed, Cardinal Dew was able to block publication for seven months by appealing the decision to the Court of Appeal and seeking leave to appeal to the Supreme Court.

This pattern is not without precedent in New Zealand. Even where an application has no realistic prospect of meeting the high bar for granting prior restraint, an applicant can significantly delay publicity by using the appeal mechanism.³

Not only is this a “drastic interference with freedom of expression”,⁴ but it forces the media to spend significant resources in a context where many media organisations are under significant financial constraint.

We consider that the Courts need to be alive to these realities and should grant interim suppression orders pending an appeal, and certainly an application for leave to appeal to the Supreme Court, only where they consider that the matters are finely balanced and there is a realistic prospect of the prior restraint threshold being met.⁵

Invasion of privacy blunted

But the judgments in this case will undo some of the legacy of the 2019 High Court decision in Driver v Radio New Zealand Ltd which found it was reasonably arguable that the media disclosing the fact of a police or other regulatory investigation could invade someone’s privacy.⁶

Cardinal Dew’s lawyers ran a similar argument but the Court of Appeal rejected it on the grounds that:

• Cardinal Dew had denied the allegations, so if they were untrue they could not be private facts about Cardinal Dew and instead were properly the province of defamation;⁷
• Even if they were private facts, the alleged victim’s right to speak about their claimed experience trumped any reasonable expectation of privacy that Cardinal Dew might have, meaning that the publicity could not be highly offensive; and
• The fact of a police investigation did not create a reasonable expectation of privacy by itself.⁸ Rather the focus needed to be on the source of the information and the content of the reporting – whether it simply noted that there was an investigation or went further and reported the contents of the investigation and the investigation’s conclusions.

Chapman Tripp’s involvement in the case is ongoing.