New public interest defence to defamation claims

​The Court of Appeal’s decision yesterday to introduce a new public interest defence to defamation claims has far-reaching implications for journalism in New Zealand, Chapman Tripp says.

In Durie v Gardiner the Court of Appeal introduced a new public interest defence to defamation claims, replacing the privilege recognised in Lange v Atkinson (No 2) and includes neutral reportage.

“This decision will have significant implications for New Zealand journalists as it confirms there is protection for publishing matters of public importance beyond matters relating to politics,” says Chapman Tripp litigation partner Justin Graham.

“The onus is on the defendant to prove, firstly, that the matter is of public interest, and secondly, that the communication in question is 'responsible'. The Court has also defined a matter of public interest as one that ‘should be one inviting public attention, or about which the segment of the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached’,” Graham says.

The Court also defined factors that would be taken into account in assessing whether a communication is responsible, including: the seriousness of the allegation, the degree of public importance, the urgency of the matter, the reliability of any source, whether comment was sought from the plaintiff and accurately reported, the tone of the publication, and including unnecessary statements irrelevant to the public interest.

“However, the decision does also impose a requirement for the publisher to positively prove the publication was responsible, when up until now it had been incumbent on the plaintiff to prove the publication was irresponsible.”

A copy of the decision Durie v Gardiner [2018] NZCA 278 is here.

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