Article Title:Comment: Defama-Tory?
Category:Comment
Author or Credit:Craig Young
Published on:19th September 2006 - 12:00 pm
Published by:GayNZ.com
Story ID:1420
Text:Provoked beyond measure, the Prime Minister would be entitled to undertake legal action if certain defamatory allegations about her husband continue. This is a hypothetical look at what might then ensue. Defamation is a tort, or civil wrong. In New Zealand, it is governed by the clauses of the Defamation Act 1992, although the law of defamation was first spelt out within the British Commonwealth in Parminter v Coupland (1840). This defined defamation as "a publication without justification or lawful excuse [that]..is calculated to injure the reputation of another and exposing him [or her]..to hatred, contempt or public ridicule." At present, a Court of Appeal case, New Zealand Magazines versus Hadlee (1996) provides the best case law summary of the interpretation of the law within New Zealand. In this case, the Court of Appeal noted down elements of a test whose requirements that should be met if an aggrieved party wants to establish that a defendant is liable for defamatory publications. Bearing in mind the element of injury to the reputation of another, and exposure to contempt or public ridicule, it establishes the principal element of the test as what a reasonable, ordinary person would understand. Let it be added that this person should possess ordinary intelligence, general knowledge about the surrounding world, and should be sufficiently worldly in their social life. Finally, the test also relies on what an ordinary reasonable person would discern from reading the publication, given the words used. Context is particularly important, and strict liability can result from these interpretations of meaning. With this in mind, what is defamation? Is it defamation to state that someone is gay, even if someone is not? According to New Zealand Magazines versus Hadlee, that still appears to be the case in New Zealand law, or was when this case was heard in 1996. While an Australian case, Rivkin versus Amalgamated Television Services Pty Ltd (2001), held that allegations of homosexuality might no longer expose one to hatred, or contempt, Rivkin also held that associated defamatory allegations about hypocrisy or infidelity might also be actionable. New Zealand had its first case of Internet-related defamation in 2001. In O'Brien v Brown, the District Court held that liability for defamatory publications existed online, and it is also possible that it might lead to aggravated charges, given that access to online publications is now widespread, thus increasing its scale of potential circulation. Relevant surrounding matter can also be considered, as was noted in an unpublished case, Thode versus Coastline FM, in October 1997. What are the defences? If a defendant can establish that the content of their statement is true, then the plaintiff will lose the case. This is related to Section 8 of the Defamation Act 1992, which established these grounds for truth, or matters not markedly different from it. If a plaintiff sues on particular meanings, then the defendant is required to prove that the allegations are true in substance. There is a defence of honest opinion, but the defendant must prove that they actually hold such an opinion. As for rumours and hearsay, they are treated as if they were a direct statement, and are similarly actionable- see Truth New Zealand versus Holloway (1961). Within common law, there is a defense of privilege, related to statements that raise issues about the performance of elected officials, but this has only been applied to elected parliamentary politicians or former politicians thus far- Lange versus Atkinson [2002]. Any potential defendant should bear in mind that defamatory statements that might refer to matters unrelated to the performance of governmental duties or parliamentary responsibilities that affect a Minister of the Crown or Member of Parliament may be actionable. Similarly, if the attacks are directed at a parliamentary spouse or partner, they would not be covered under the defense of privilege. Nor does it apply if the plaintiff can prove that the defendant was "predominantly motivated by ill-will," as noted in Section 19 of the Defamation Act 1992. Lange is also relevant if a "cavalier attitude to the truth" or "responsible consideration thereof" has not been taken within particular publications. In the United Kingdom, the case of South African cricketer Bruce Grobbelaar is also important. In 2001, Grobbelaar versus News Group Newspapers Limited held that it was significant whether reasonable inquiries from reliable sources were made, and whether sensationalism was evident. What damages are possible? Under Section 26 of the Defamation Act, a correction of the matter is required to be published, with a declaration that this has occurred also possible under Section 24. On appeal, financial damages can be either increased or diminished to the plaintiff, if it is felt that is so warranted. Please note that I am not a qualified solicitor or barrister, so there should be no absolute reliance on this material in the context of any forthcoming publications. Nor are they intended to refer specifically to any particular current media article related to the Prime Minister. This is intended as fair comment on a hypothetical course of action, in the public interest. Recommended: John Burrows and Bill Wilson: Media Law: Wellington: New Zealand Law Society: 2003. Michael Giloolly: The Law of Defamation in Australia and New Zealand: Sydney: Federation Press: 1998. Craig Young - 19th September 2006    
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