Defamation / Reputation
Afanasyev v. Zlotnikov
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A New Zealand Appeals Court created a new defence of responsible communication on a matter public interest to replace the former qualified privilege defense. A retired High Court judge and his lawyer wife, both prominent public figures in the Māori Council, brought the case in response to defamatory news reports about his wife’s law firm and alleged conflicts of interests with the Council. Māori TV claimed the statements were protected by qualified privilege and were neutral reportage on matters of public interest. In light of new challenges brought on by the digital age, the Court found that the standard defense of qualified privilege, which was limited to parliamentarians and political issues, was outdated and insufficient to address the claims. Citing recently established standards in the U.K. and Canada, the Court created a new public interest defense available to anyone who publishes material in any medium in-so-far as it is in the public interest and meets a responsibility requirement.
The source of the controversy was four stories broadcast by the Te Kāea news program and posted on their website about two prominent New Zealanders; Sir Edward Durie, who was a retired High Court Judge and at the time Co-chair of the New Zealand Māori Council and his wife Donna Hall, a high profile lawyer who specialized in Māori legal issues.
On 3rd August, 2015, the head of Māori TV News and Current affairs, Maramena Roderick was contacted by a confidential source who informed her of a conflict within the Māori Council. The source forwarded her an email which contained a copy of minutes of a Māori Council Executive meeting held on 28th July of the same year. The email was dated 31st July 2015 and was sent to Hall by the co-chair of the Māori Council, Maanu Paul (Paul). It detailed that Hall’s law firm had been dismissed as the Council’s representatives in proceedings regarding the Trans-Pacific Partnership Agreement and that she was to hand the file over to another lawyer. The minutes further revealed that Hall’s dismissal was due to accusations that she had engaged in actions which breached the Māori Council rules, including failing to reveal a conflict of interest with the council.
Senior news producer Heta Gardiner contacted Hall prior to broadcast to ask if she would be available to give her perspective on the issues raised in the meeting minutes. Hall disputed the allegations and stated that Paul had no authority to dismiss her. She and Gardiner agreed to speak again when she could provide additional details.
By the time of the show, Gardiner had conducted a telephone interview with Paul where he confirmed that the minutes were an accurate record of the meeting. Hall emailed Gardiner 15 minutes before the broadcast and stated that the meeting minutes under scrutiny were not from a properly constituted meeting of the executive and that there existed documents that could show that the defamatory allegations were false. As there was to be a Māori Council meeting soon, Hall was confident that the allegations would be shown to be false and she advised Māori TV not publish the intentionally false allegations which she claimed were made for political gain relating to upcoming elections for the Māori Council.
Gardiner decided to report the story after conferring with his producers and agreed to add Hall’s statement as a live piece at the end of segment.
Shortly after broadcast, the first website story was put up on Māori TV’s website in English, but it did not include comments by Hall or Gardniner’s summary of Hall’s response. The original script of the broadcast was also uploaded but the video clip containing the summary of Hall’s response, was uploaded two hours later.
Gardiner offered Hall an opportunity to be interviewed the day after the broadcast to refute the accusations but received no response. On 5th August, Gardiner received a letter from a lawyer representing Hall and Sir Edward which contended that the broadcast and website story were defamatory and that MāoriTV failed to give them adequate time to provide evidence refuting the allegations. The letter requested that the website story be removed along with a retraction and apology.
On 6th August, the website story was updated to include the part of the Broadcast where Hall’s response was presented. On 7th August, Māori TV removed the website story but did not agree to the other demands as Māori TV argued that the story was still developing. Therefore, they refused to agree not to republish the minutes and reiterated their invitation for an interview.
Ms. Hall and Sir Edward filed suit claiming that the natural and ordinary meaning of a long list of statements in the four articles were defamatory. They sought compensatory, aggravated, and punitive damages in additional to a publication of a correction.
Māori TV pleaded that the impugned defamatory statements were “protected by qualified privilege in that they were neutral reportage, and/or subject to the Lange v Atkinson privilege; or an extension thereto; and/or were responsible journalism/communications on matters of public interest; or protected by a sui generis public interest defence.”
The High Court, after a careful review of the relevant legal authorities, found the case qualified for the neutral reportage defense and that the reporting was responsible and neutral.
Sir Edward and Hall appealed.
The main issue before the court was to decide whether there was a public interest defense to defamation in New Zealand and if so, how to circumscribe the scope of such a defense. The defendants pleaded a public interest defence based on new developments in defamation law in the United Kingdom and Canada. This provided the Court its first opportunity to re-evaluate the existing defence of qualified privilege set in the two landmark Lang v. Atkinson cases in light of recent legal developments.
The Defense of Qualified Privilege
The Court first explained that the extension of qualified privilege in New Zealand hinged on a “duty/interest” test where protection may be granted for false and defamatory assertions of fact, made by persons with a legal, social or moral duty to make it to persons with an interest or duty in receiving it — unless it can be proved that they were made with malice or ill-will. The challenge in defamation cases, following Lange v. Atkinson (No. 1), is striking the proper balance between the right to freedom of expression and the right to reputation, which ultimately is “a value judgment informed by local circumstances and guided by principle.” Since there was no requirement for a publication to be “reasonable” in New Zealand, and the privilege arose based on the occasion of publication and not on the subject matter, there was concern that expanding the privilege could weigh in favor of freedom of expression to the detriment of reputation.
The Court reviewed past judgements on the issues, in particular the two Lange v Atkinson cases. In the first Lang v Atkinson, the court extended the scope of qualified privilege in favor of freedom of expression to include allegations regarding the fitness of candidates for political office, recognizing the media’s duty to publish information on electoral matters and the public’s interest in receiving it as central to the democratic process. The decision sought to correct existing law which was impeding the exchange of political viewpoints, but the scope still only extended to topics relating to the electoral process. The second Atkinson case reconsidered and affirmed its previous ruling taking into consideration the UK landmark ruling in Reynolds v Times Newspaper Ltd and the differing media cultures in England and New Zealand. The Court at that time decided not to “follow Reynolds and extend the scope of the privilege beyond political discussion” finding it could lead to “uncertainty” in the law and “reduce the role of the jury.” It further declined to adopt a responsible journalism test as it was deemed unnecessary in the New Zealand context.
Need For a New Public Interest Defense
Taking into consideration the dramatic changes in communications technology over the last 18 years, the Court of Appeal found it was time to “strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concerns and which is subject to a responsibility requirement.” [p. 20] The court noted that in the digital age, political power was no longer just in the domain of elected officials and public debate was no longer mediated by professional media outlets. The emergence of non-professional, citizen journalists and bloggers necessitated additional safeguards to protect reputation and privacy rights as these bloggers operated in an unregulated space. Therefore, the Court opted for a board defense covering responsible communications, rather than limiting it to just journalism.
The new defence has two elements, firstly, the subject matter of publication must be shown to be in the public interest and secondly, the manner of communication must be responsible. The defendants shoulder the burden to prove both points.
The Court adopted the Canadian Supreme Court’s understanding of public interest in Grant v Torstar Corp , to included matters concerning public welfare or a matter of great public controversy or notoriety.
Similar to the House of Lords in Reynolds, the Court listed a set of factors to take into consideration when evaluating whether a communication was responsible. The factors included:
The factors were not to be treated as exhaustive and had to be applied on a case-by-case basis. To prevent complex and lengthy jury negotiations in defamation cases, judges rather than juries, would determine whether the requirements for the defense were established. Further, the defense would be applied along a spectrum of public interest and level of responsibility.
A Majority of the court agreed that neutral reportage would not be treated as a separate defense but would be a subset of the new public interest defense on the ground that neutral reportage lies within both legs of the new defense, that is, matters of public interest and responsible reporting. Accordingly, its appropriateness would be evaluated based on similar factors to those listed above.
In a separate opinion, Justice Brown raised the concern that a neutral reporting defense could allow for the publication of information which the publisher knew to be false as long as the publisher did not adopt the allegation. Further, it could lead to journalists no longer feeling duty bound to fact-check and verify sources. The Majority was unpersuaded by his concerns finding that in most cases, the public interest was served in assessing the potential truth of the allegation, rather than the fact that the allegation was made.
The Court ruled that the qualified privilege defense would be subsumed by the new standalone public interest defense. Regarding the application of the new defense to the present case, the court struck out all references of “Qualified Privilege/Public Interest” from Māori TV’s pleaded defense. The Court rejected their application to adduce additional evidence on the ground that the purported evidence related to post-publication facts, which were not relevant.
The subject matter of the statements was clearly in the public interest, therefore the sole issue to be determined was whether the reporting was responsible. The Court rejected the High Court’s application of neutral reportage, finding that Māori TV reported on Hall’s alleged dismissal as if it were fact, which constituted adopting an allegation. Accordingly, the Court struck out any reference to neutral reportage.
Finally, the Court found Māori TV’s failure to upload Hall’s statement with the first web article to be “fatal” to a public interest defense.
The remainder of the appeal was dismissed and no costs were awarded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision significantly expands expression by extending the scope of public interest to include all matters of significant public concern and by extending the privilege to anyone who publishes information in the public interest in any medium. It will ease some of the chilling effect of the previous defamation standards, assuring publishers that if they can meet the threshold of responsible reporting to establish the defence, they can challenge defamation claims, even if they are found to have made erroneous statements.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the New Zealand Court of Appeal, this decision is binding on all trial courts and High Courts in New Zealand
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