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How the Defamation Act might be reformed

24 Nov 2023

| Author: Ali Romanos

In the 30 years since our Defamation Act 1992 came into force, comparable jurisdictions have overhauled their legislation: England in 1996 and 2013, Australia in 2005 and 2021, Scotland in 2021 and Ireland in 2009 (with further reforms afoot).

By contrast, in New Zealand there has been no overwhelming exigency or political appetite for change. This must reflect to some degree the success of the McKay committee, whose 1977 report laid a solid foundation for the Act.

The committee was, in fact, ahead of its time. For example, it influenced the renaming of defences – justification to truth and fair comment to honest opinion – decades before New Zealand’s common law counterparts. However, the lack of appetite for change is also likely a reflection of New Zealand’s relatively light body of case law – around 950 defamation judgments (trials, appeals, interlocutories and costs) in the past 30 years. That said, any piece of communication law which projects booksellers, librarians, newspapers and broadcasters as primary disseminators of potential defamation – and, moreover, an Act which does not conceive of the internet, let alone social media – must at least raise questions for reform.

To get this ball rolling, this article puts forward four discussion points:

  • whether New Zealand’s existing common law harm threshold should be revisited by legislation;
  • whether the current remedies framework is fit for purpose;
  • whether civil juries have a place in Aotearoa New Zealand’s future; and
  • whether identification of some of the Act’s anachronisms support a broader legislative overhaul.

 

Should a harm threshold be legislated?

Historically, a plaintiff in defamation was not required to establish actual reputational harm. Upon proof of the elements – publication, identification and a meaning’s inherently injurious character (ie. its “defamatory tendency”) – the tort was established.

This “presumption of harm” was pragmatic: it stopped intending plaintiffs having to, say, scour a newspaper’s readership to find witnesses in whose eyes their reputation had been injured. As a result, any actual reputational harm established, inferred predominantly by an allegation’s gravity and width of publication, went only to damages.

From around the turn of the millennium, English common law began taking a more robust view, recognising some actual reputational harm should be present to ascertain the tort’s commission. Courts came to approach this issue from two directions. First, they could assess whether there was in fact a dispute of sufficient gravity to warrant litigation; whether a “real and substantial tort” had been committed.

This inquiry, which became known as the Jameel principle (Jameel v Dow Jones Ltd [2005] QB 946) applied in cases with a very narrow width of publication; cases where it could be ascertained that the publication’s recipients were unmoved in their estimation of the plaintiff (eg, family members), or the plaintiff’s broader reputation could not have been damaged more than negligibly. Thus, under the Jameel principle, the presumption of harm could be rebutted in an appropriate case.

Second, courts began to scrutinise the intrinsic seriousness of defamatory meanings. Put simply, were the meanings sufficiently grave for the plaintiff to have been genuinely defamed? Under this “Thornton threshold”, meanings had to have a tendency of substantial reputational harm to enable proper inference that the claimant had indeed been lowered in the estimation of right-thinking people.

This didn’t change the law per se but, rather, brought sharper focus to the inquiry of defamatory tendency. But importantly, in terms of framework, if a meaning crossed this threshold of seriousness, then the presumption of harm would be activated, although it would remain subject to potential rebuttal under the Jameel principle.

These developments soon gave way to the Defamation Act 2013 (UK), under which a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

Fast-forwarding to 2019, the UK Supreme Court held this serious harm threshold must be determined against a publication’s actual impact, not merely the defamatory tendency of a particular meaning. To be sure, actual impact can still be inferred; a grave meaning and broad width of publication will support this. But crucially, the presumption of harm based merely on a meaning’s defamatory tendency – even substantially defamatory tendency – has been swept aside.

Against this iconoclastic, albeit now-settled English position, some Australian states and territories have adopted a serious harm threshold as a discrete cause-of-action element; Scotland has made serious harm an explicit precondition of actionability; and the short odds are for Ireland to soon join these ranks.

Pan to New Zealand and one observes a stray from orthodoxy. It began innocuously enough, with a series of judgments that cautiously adopted the Jameel principle or gave obiter support to a requisite threshold of seriousness. But in 2017, Palmer J opted for a slightly different approach in Sellman v Slater [2017] NZHC 2392, thereafter approved uncritically by the Court of Appeal, which has left New Zealand law (one might argue) muddled and undeniably divergent from its overseas counterparts.

To trace this path, Palmer J accepted the underlying rationale of the Jameel principle: to weed out, in exceptional cases, claims so disproportionately burdensome on resources that they may be characterised as an abuse of process. Palmer J was, however, concerned Jameel’s reach could trample fundamental constitutional principles safeguarding access to courts. So, leaning on then-fresh UK Court of Appeal precedent (spoiler: such precedent was subsequently reversed), Palmer J considered “the presumption of damage remains a sensible element of the law of defamation”.

In so finding, Palmer J said this presumption was rebuttable: If the publisher can show there is not, and is not likely to be, sufficient damage to reputation above a certain threshold, then that should be able to be raised as a defence to a claim of defamation.

For the threshold itself, Palmer J disagreed with the Englishlegislated serious harm threshold on the basis that he considered it “possible for an actionable defamation that causes less than serious but more than minor harm to reputation to be reflected in a nominal award of damages, combined with a declaration of defamation” and moreover that such outcome “may still constitute a reasonable limit on the right to freedom of expression”.

In so finding, Palmer J resolved to draw a line around a concept of “minor harm”. On one side, Palmer J held that if a defendant could show his or her statement caused “less than minor harm” to the plaintiff’s reputation, then this would defeat a claim and, moreover, ground a Jameel-based strikeout application. On the other side, Palmer J held a threshold of “more than minor harm” was required to found an action for defamation in New Zealand.

As foreshadowed, Palmer J relied on a UK Court of Appeal decision that was later reversed in the Supreme Court (Lachaux v Independent Print Ltd [2017] EWCA Civ 1334). As noted, the Supreme Court held that harm under the UK legislation is to be assessed by reference to actual facts, rather than mere defamatory tendency. Distinguishing the approaches, a defamatory tendency inquiry retains a presumption-of-harm framework, whereas an actual harm inquiry casts this aside. English law clearly now takes the latter approach.

By contrast, Palmer J’s decision can be seen to “have a bob each way”. He appeared to consider defamatory tendency/ presumption of harm as the better framework, but also envisaged actual-harm considerations in assessing its rebuttal. It may be that Palmer J’s novel threshold presents a difficulty for cases where simply minor harm (not less than, but also not more than) is established. Such cases will apparently survive strike-out, but not prevail at trial. Further, if Palmer J’s approach is to be followed to the letter, only nominal damages should be available in cases where the harm is assessed to be “less than serious but more than minor”.

It doesn’t seem credible that a case where more than minor harm is established (so, moderate harm?) would give rise only to nominal damages. And further, it is probably the exception rather than the norm that a plaintiff will seek damages and a declaration, since the costs benefits of a declaration fall away if one seeks damages.

But as perhaps the most pressing issue arising from Palmer J’s decision, to what extent is the more-than-minor-harm inquiry to be resolved by dint of meanings’ defamatory tendency vis-àvis actual reputational harm as a matter of evidence?

The Court of Appeal had an opportunity to scrutinise Palmer J’s approach in 2020. In Craig v Slater it held as follows: We approve adoption of the “more than minor” harm requirement in New Zealand common law, for three reasons. The first is that damage to reputation is an essential element of the cause of action of defamation, for the reasons Tugendhat J canvassed in Thornton v Telegraph Media Group Ltd. The fact that damage is rebuttably presumed (in most cases) does not alter the fact that damage to reputational credit remains an element of the tort. Principle and proof should not be confused. Secondly, a threshold of this kind is a necessary consequence of the right to freedom of expression protected by s 14 of the New Zealand Bill of Rights Act 1990. We agree with the reasoning of Palmer J in Sellman v Slater on that point. Thirdly, we consider the requisite threshold standard – “more than minor harm” – was correctly identified in the same decision and is to be preferred to a higher standard based on the word “serious”.

While this paragraph may look substantive, on close inspection there is no meat to the court’s analysis. Further, the court, in approving Palmer J’s more-than-minor-harm threshold, tended to confuse the situation further with its characterisation of harm being “rebuttably presumed (in most cases)” – whatever that ultimately means. Finally, to underscore the uncertainty, the Court of Appeal blandly cited the UK Supreme Court’s decision in Lachaux, but did not address, much less reconcile, the fact that Palmer J’s decision had been influenced by the now-reversed UK Court of Appeal decision.

Where to from here? Respectfully, with the Court of Appeal’s approval of Palmer J’s more-than-minor-harm threshold and lack of reconciliation of the framework for this threshold, New Zealand law is trapped in presumption-of-harm cement while its overseas counterparts forge ahead.

It would be fanciful to conclude New Zealand law has settled satisfactorily on these issues. It is submitted that a legislative response is warranted, both as a means to address the appropriate threshold of harm (be it serious, substantial, more than minor, minor or something else), and to reconcile whether a presumption of harm is and/or should remain part of a modern New Zealand defamation law. In any case, legislative reform would be opportune to iron out uncertainty and enjoy the benefits of the considerable bodies of case law on these same issues in comparable jurisdictions.

 

Is New Zealand’s remedies framework fit for purpose?

For present purposes, the remedies discussed are apologies and declarations. Provisions in the Act addressing damages are addressed in the “anachronisms” section of this article.

First, apologies. Historically, these weren’t “ordered” by a court, given the once-felt oddity of the state ordering people to feel or express contrition. But this libertarianism has subsided. In 2005, a BSA-ordered apology by Radio New Zealand for a broadcast about Peter Ellis was upheld by a full court of the High Court in Radio New Zealand v Peter Ellis [2006] NZAR 1. We then had the Harmful Digital Communications Act 2015, under which Parliament empowered judges explicitly to order the publication of apologies. And finally, we had a substantive defamation decision in which Collins J, in Newton v Dunn [2007] NZHC 2083, read into s 26 of the Act (which addresses the remedy of corrections) the power to order an apology.

Against this backdrop, it seems sensible for any reform to consider court-ordered apologies as an explicit remedy in defamation. Indeed, for many plaintiffs, a prominent apology that at least conveys contrition (even if not actually felt by the defendant) is a more satisfactory means of vindication than some staid correction.

some staid correction. Second, declarations. This initially unique remedy is another badge of the McKay Committee’s legacy. Section 24 of the Act provides:

1) In any proceedings for defamation, the plaintiff may seek a declaration that the defendant is liable to the plaintiff in defamation.

2)Where, in any proceedings for defamation, –

(a)the plaintiff seeks only a declaration and costs; and

(b)the court makes the declaration sought, – the plaintiff shall be awarded solicitor and client costs against the defendant in the proceedings, unless the court orders otherwise

Subsection 1 is uncontroversial. In any given case, a formal declaration of liability for defamation will serve as a valuable stamp of vindication for a plaintiff’s reputation (an award of damages will also achieve this, the amount indicating the measure of vindication). Subsection 2, however, is most controversial. For one thing, it serves as a legislative exception to the costs regime under the High/District Court Rules. And though there are relatively few judgments where it has been applied, for defendants with an arguable defence, the indemnity-costs presumption makes for an ugly bedfellow of general litigation risk.

It is helpful to explore the intention of s 24. For the McKay committee, declarations were perceived as a means to prevent third parties alleging a plaintiff’s claim was simply a gold-digging exercise (ironically, a potentially defamatory claim in itself) and would remove obstacles the McKay committee perceived stood in the way of such relief being ordered under the Declaratory Judgments Act 1908.

While the McKay committee accepted the efficacy of declarations was dependent to some extent on the speed with which such claims could be heard in court, it rejected calls for streamlined litigation procedures or declaration-based claims to be prioritised.

Without any consideration of its potential abuse, the McKay committee proposed to “further enhance the attractiveness of this avenue for plaintiffs” by offering presumptive indemnity costs to those who sought only a declaration.

In Hansard, the declaration remedy is barely mentioned. In 1988, then Justice Minister Geoffrey Palmer considered the declaration-and-indemnity-costs combination would suit “persons who are more interested in clearing their name quickly than in obtaining damages”. As with the McKay committee, noone in Parliament articulated any contemplation of abuse. In practice, abuse of s 24 has been fairly rampant. Now, most experienced practitioners can recall cases where a deserving plaintiff has achieved settlement utilising the s 24 solicitor-client costs provision against a defendant who might otherwise have chanced their arm and put the plaintiff through the ordeal of a trial.

However, the much more common scenario is that of defendants, although facing relatively weak claims, buckling under s 24(2) costs pressure and settling. Anecdotally, certain prolific plaintiffs have made a somewhat cottage industry out of threatening and settling declaration claims based upon isolated social media comments and/or reviews.

The short point is that nowhere in the legislative history of s 24 was its potential for abuse examined. But now, with 30 years under our belts, perhaps it is time to right the ledger. Perhaps presumptive indemnity costs could be offered to defendants where a court has refused to grant the declaration. Or perhaps declarations could be utilised solely for reputation vindication, rather than sheeting home liability.

In this respect, if a claim was restricted to truth or falsity of a factual allegation, with other defences such as privilege and responsible public interest communication made unavailable then this could enable a streamlined process. Then again, maybe this massively wishful thinking! Whatever the case, it is submitted both apologies and declarations warrant formal legislative review.

 

Are civil juries part of our legal future?

Civil juries recently survived the enactment of the Senior Courts Act 2016. Parties may seek a jury only for claims in defamation, false imprisonment and malicious prosecution, the latter two civil actions being so rare that it would seem civil juries’ retention stands or falls on their ongoing relevance to defamation claims.

The arguments for and against juries in defamation haven’t changed much over the years. The usual strengths and weaknesses revolve around the appropriateness of juries’ determining defamation issues, cost to litigants and stress upon court resources.

When the Act was first passed, Parliament protect the role of the jury. For example, the McKay committee’s draft Bill proposed that punitive damages be solely the domain of the trial judge but this restriction was rejected during the legislative process. However, that was decades ago. More relevantly, one hears from the courts a fairly consistent tone against juries’ retention. For example, during the Williams v Craig litigation, Katz J expressed misgivings about response-to-attack qualified privilege defences being tried before a jury. Meanwhile, when the Court of Appeal determined Durie v Gardiner, the court resolved that both the public interest and responsibility elements of responsible public interest communication would be decided by the judge in a jury trial.

Moreover, the court referred, among other criticisms of juries’ involvement in defamation cases, to the “diminishing importance of the jury in defamation trials”. And in Cato v Manaia Media Ltd, Goddard J suggested that parliamentary review of juries’ availability in defamation cases “may well be desirable”. Whatever one’s views on the merits of civil juries, it seems this issue should be at least placed on the legislative reform agenda

 

Do the Act’s anachronisms support a more general overhaul?

Some parts of the Act are of certain historical significance that is now virtually imperceptible to those other than defamation trainspotters. Some parts of the Act have lost all real currency since their enactment. And some parts have long been problematic and are prime candidates for legislative surgery. As an example of the first matter, s 7 provides:

Single publication to constitute one cause of action

Proceedings for defamation based on a single publication constitute one cause of action, no matter how many imputations the published matter contains. Judges have read this section and perceived its relevance to be tied up with the single-publication rule. But as Ursula Cheer observes in Media Law in New Zealand, s 7 overrides the common law rule that a claim based on both natural and ordinary vis-à-vis innuendo meanings gives rise to discrete causes of action. And even more obscure, s 7 also served as a departure from the once-prevailing custom in New South Wales, where each substantive imputation complained of gave rise to a separate cause of action.

In respect of provisions that have lost their currency, one can cite the once trailblazing s 35 conference. Now, to be fair, such conferences are still convened every few years. Then again, it should be kept in mind that when the Act came into force, the then-extant High Court Rules 1985 did not provide for judicial conferences. They are now a firm (and likely growing) part of civil procedure, so does s 35 still retain currency? It does provide additional powers and procedures, but it would seem much of its procedure is already spoken for under modern High Court Rules.

One provision clearly needing excision is s 38 “particulars of truth”. Long ago, the Supreme Court cleared up this provision’s mislabelling and lack of relevance. Since 1957, all defendants have been required to give particulars of affirmative defences. And yet, from time to time, this section’s inexplicable retention has led courts down faulty paths. Section 43, too, calls for a re-think. In full, this provides:

Claims for damages

(1) In any proceedings for defamation in which a news medium is the defendant, the plaintiff shall not specify in the plaintiff’s statement of claim the amount of any damages claimed by the plaintiff in the proceedings.

(2)In any proceedings for defamation, where –

(a) judgment is given in favour of the plaintiff; and

(b) the amount of damages awarded to the plaintiff is less than the amount claimed; and

(c) in the opinion of the Judge, the damages claimed are grossly excessive, – the court shall award the defendant by whom the damages are payable the solicitor and client costs of the defendant in the proceedings.

On inspection, other than addressing the mischief of the fabled gagging writ, these subsections have no bearing on one another. But that’s an aside. Subsection (1) was always a confused means of addressing gagging writs. Taken at face value, the chilling effect of a defamation lawsuit is apparently neutralised because, while a plaintiff may state in correspondence to a media outlet that he or she is suing for seven figures and may state this in open court, such a sum is expressed in the statement of claim. It has always been a headscratcher; even the most patent non-compliance has been excused.

Subsection (2) is bizarre for different reasons. On its face, it seems a sensible means of stopping gagging writs. But it doesn’t really work. For one thing, courts have interpreted the provision to allow a plaintiff to avoid its consequences simply by amending their damages claim at a late stage of proceedings. For another, it is odd that a nominally successful plaintiff is penalised with indemnity costs for seeking an exorbitant sum, whereas an entirely unsuccessful plaintiff also seeking such sum, would face only scale costs.

One can make a point of ss 19 and 41, which concern rebuttal of qualified privilege. Following the McKay committee’s recommendations, Parliament did away with the terminology of ‘malice’ as a means to mark a dominant improper motive. Instead, s 19 provides for qualified privilege’s rebuttal if the plaintiff can prove “the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”. However, this language has long given an unprincipled primacy to “ill-will”. As William Young J reasoned in Craig v Williams [2019] NZSC 38, the real test is improper advantage, with predominant ill-will merely one way in which improper advantage can be taken.

Given that ‘malice’ terminology was removed because of the McKay committee’s concern about juries’ understanding of it, if juries were abolished for defamation proceedings, then it could make sense to reinstate ‘malice’. Indeed, in claims of malicious prosecution and malicious (or injurious) falsehood, ‘malice’ is an element of proof – and, ironically, may still call to be determined by a jury.

 

Further areas for reform

In addition to harm threshold, remedies, juries and the noted anachronisms, some interesting further areas for potential reform include:

  • single-publication versus multiple-publication rule
  • pre-action protocol for intending plaintiffs
  • an offer-of-amends regime for defendants
  • suppression orders for plaintiffs of limited-recipient defamations
  • anti-SLAPP (strategic lawsuits against public participation) laws
  • harmonisation of defamation with the Harmful Digital Communications Act 2015
  • harmonisation of defamation with the privacy torts
  • Durie v Gardiner responsible public interest communication defence versus UK/Australian public-interest defence
  • Legislative clarification whether the ‘likely’ pecuniary loss requirement of bodies corporate means likely future loss after trial, or likely retrospective losses following publication ■

 

Ali Romanos is a barrister specialising in defamation and media law

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