Case Summary and Outcome

New Zealand’s Court of Appeal reaffirmed its 1998 decision holding that journalist Atkinson can rely on the defense of qualified privilege in a defamation action. The appeal followed a ruling from the Privy Council which instructed the New Zealand Court of Appeal to reconsider the matter in light of the recent judgment of the House of Lords in Reynolds v. Times Newspapers, which had considerably evolved the common law defense of qualified privilege. The Court held that New Zealand’s social and political context justified affirming its earlier decision, which created five guidelines that expanded the defense of qualified privilege to political statements.

Facts

In the October 1995 issue of North and South magazine, journalist Joe Atkinson wrote that former Prime Minister David Lange had been too lazy to take on the difficult aspects of his job and ridiculed him for seeking to intervene in current politics. The article was accompanied by a cartoon in which a waiter offers Mr Lange a dish called “selective memory regression for advanced practitioners”. Lange considered the article and cartoon to be defamatory and initiated proceedings against Atkinson. Atkinson relied on the defense of qualified privilege; Lange sought to have the defense struck out. The Court of Appeal decided that journalists had a defense of ‘qualified privilege’, but Lange appealed to the Privy Council. Sitting as the House of Lords, the Privy Council had just heard the case of Reynolds v Times Newspapers, which had considerably evolved the common law defense of qualified privilege. It upheld the appeal and referred the matter back to the New Zealand Court of Appeal for determination in light of that case.

Decision Overview

The Court of Appeal delivered a per curiam opinion. The main issue before the court was whether it would consider revising its earlier judgment (in favor of the defendant) taking into account the House of Lords decision in Reynolds v. Times Newspapers in which the House of Lords had re-defined the common law defence of qualified privilege.

The appellant, Lange, argued that it was appropriate for the court to revise its earlier judgment and adopt the Reynolds approach because first, there were no significant political or legislative differences between the U.K. and New Zealand justifying a divergence in approach; second, that whether the defendant is a member of the media or an individual should not determine whether qualified privilege can be granted; third, that the newspaper rule would frustrate the legitimate queries of the plaintiff; and fourth, that pleading and proving ‘malice’ on the part of the journalist is extremely difficult. [para 14]

The respondent, Atkinson, urged the court to maintain its previous approach in allowing the defense of qualified privilege. He argued that there are no significant political, social or legislative differences between both countries. Second, the respondent argued that in Reynolds, the House of Lords had rejected a specific media defense. This contrasted with the Court of Appeal’s 1998 decision, which had seen this case on a wider basis. Furthermore, the Reynolds case blurred the difference between defining a privilege and determining when it had been misused which the respondents claimed would cause confusion and uncertainty. Finally, the respondents urged the court to achieve as much harmony between the New Zealand and Australia approach on this as possible. [para 15]

The court noted that the U.K., Australia and New Zealand share the main relevant features of a parliamentary democracy, based on universal suffrage, with a government that is accountable to Parliament and through it to the electorate. However, the court pointed out several differences between the countries. First, that of the electoral system in the countries; second, that of the Freedom of Information laws which differ significantly between the countries; and third, that there was no comparable legislation in Australia to the New Zealand’s Bill of Rights, 1990 or the U.K. Human Rights Act 1998. [para 27-29]

The court considered moreover that the Reynolds decision appeared to alter the structure of the law of qualified privilege in a way which adds to the uncertainty and chilling effect in defamation law; [para 38] that there are significant differences between the constitutional and political context in New Zealand and in the United Kingdom in which the body of law operates; that the position of the press in both countries is significantly different; and that qualified privilege is an area of law where the Parliament has left the court to develop the governing principles and apply them to the evolving political, social and economic conditions. [para 40]

In conclusion, the court adhered to its previous conclusion and confirmed the five-point summary in its previous judgment [para 41] that:

1. The defense of qualified privilege may be available in respect of a statement, which is published generally.
2. The nature of New Zealand’s democracy means that the wider public may have a proper interest in respect of generally published statements, which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.
3. In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.
4. The determination of the matters, which bear on that capacity, will depend on a consideration of what is properly a matter of public concern rather than of private concern.
5. The width of the identified public concern justifies the extent of the publication.

The Court added a sixth point, that “[t]o attract privilege the statement must be published on a qualifying occasion.”

The Court emphasized that its decision expanding the defense of qualified privilege should be read in light of S. 19 of New Zealand’s Defamation Act 1992, which prevents reliance on qualified privilege if the defendant is predominantly motivated by ill will against the plaintiff or otherwise takes improper advantage of the occasion of publication.