defamation: the defendant's case

defamation: the defendant's case

1. options: dispute meaning or turn to defences (truth, honest opinion, or privilege)

2. conduct rule: necessary to gain particulars of relevant conduct of the P rather than relying on some other source, when seeking to establish grounds for suspecting misconduct by the P. Can't just repeat claims of others or know that others think the same.

3. truth

   • s8: can succeed if can prove that publication as a whole is true/not materially diff from truth. eg In templeton could have proved "politics of hatred" umbrella sting. OR can just prove truth of one allegation eg anti-semitism. Even if one wrong, can still be a defence. D can prove a broader meaning now than that argued by P. Reverses Templeton.
   • Templeton v Jones: only sued for "jew" statemnt. P entitled to pick and choose and D has to defend THAT allegation. Priving others will not be a defence. Can sue on one charge only if they are distinct, not if words are inseverable eg "scamp and a rascal".
   • TVNZ v Haines: D can contest the meaning argued for by the P and try to convince jury is is wrong, but can't intro evidence to prove the truth of their meaning. P sets ground rules. D can't set up own lesser meaning. Best for P to go for most serious meaning, then can exclude evidence as to less serious truth. Affects levels of allegation cases.

4. honest opinion

   • old rules: must be on a matter of public interest. If malice proven, defence defeated. If attacks P's motive, must be well-founded, warranted on the facts.
   • 1. opinion (as opposed to allegations of fact). Eyes (leading a life or open and flagrant immorality): in 1873, objective sense of morality. Diff today where stds vary, would be recognised an an opinon. But was factual then. "That which is in its nature doubtful" or not ascertainable = opinion. Clarke: "observation, inference, conclusion, criticism, remark, observation etc"
     • 3 types: pure evaluative opinion. "I think he's ugly". Context-dependent "he behaved disgracefully". Statement of fact "He took a bribe". This can be an opinion as a deduction from facts.
     • consider: how would it be reasonably understood? is it a bare assertion or surrounded by supporting facts (latter easier as opinion)? provable as true or false? subjective/evaluative language? context (letter to ed, editorial, humor = opinion, metaphor)
   • 2. genuine
     • doesn't have to be sound or reaosnable, just honest. Can be prejudiced, insensitive. Ill will doesn't defeat. Must actually believe it. court may find so extreme that can't be genuine.
   • 3. based on facts: Foot "lower than Kemsley" as headline. Nowhere else. No facts to support allegation in publication, but newspaper gets HO defence. Facts were "indicated" bc people can go read the paper and find out info for themselves. It's a matter of genral knolwedge, facts in pub domain. Same as for work of art, movie, restaurant. Submitted to public
   • DA: not defeated by malice. No special rule about P's motive. Need not prove truth of all facts.
   • if D not author
     • if employee or agent of D: have to prove they reasonably believed it was the author's genuine opinon. And that the story did not purport to be D's opinion.
     • If not employee, easier test. Must prove that it doesn't purport to be D's opinion, and that they had no reasonable cause to believe that i wasn't the author's honest opinion.

5. privilege

   • absolute privilege: not defeated by malice. bullet proof shield. Witnesses, court proceedings, speaking in Parliament
   • designed to protect certain types of speech, which we don't want people to be afraid of making for fear of a lawsuit. Protects false statements, no truth required.
   • qualified privilege
     • statutory (go here first)
       • set of occasions set out in schedule 1 PART 1of DA - fair and accurate reports of absolutely qualified occasions. Unless malice proven under s19, or illegal under s17.
       • PART 2 of DA: fair and accurate reports of various official events and pubs eg. local authority meeting, press conference. Unless malice or illegal, AND HAS TO BE A MATTER OF PUBLIC INTEREST in any place it is published. Not "all places" (Ferrymead). So can jut be PI in one place of pub. s 18 Right of reply: privilege lost if unreasonably say no to right of reply If you publish a statement of contradiction or explanation, keep privilege.
     • common law
       • traditional
         • Watt (affair letter passed around to boss and wife): was there a moral, legal, or social duty to communicate something to someone who has a l, s, or m interest in receiving it? recognised by "the great mass of right-thinking people"?
           • 3 situations where there will be. If you go beyond these, excess of privilege.
             • 1. a duty to communicate to someone who has an interest in receiving it eg. reporting theft to police
             • 2. an interest in the speaker to be protected by the communicating of that info to a person honestly believed to have a duty to protect that interest eg. shareholder telling directors about one director's dodgy dealings
             • 3. a common interest and reciprocal duty in respect of the subject matter communicated. eg.tut fact scenario - board member telling other members of board. They have a duty and an interest in protecting the funds.
         • malice
           • Horrocks v Lowe (alleged slander at council meeting). Lowe believed def statement, but hadn't fairly considered/checked facts.
             • malice: if indifferent or reckless to whether it's true or not. Or if you know it's not true. Or if misuse of occasion for some other purpose (duty to communciate isn't primary motive, even if you believe it's true. eg. venting ill will or gaining private advantage). Lack of belief/indifference/misuse = malice = loss of privilege. And if defamatory material is irrelevant.
             • not malice: if you have a positive belief in statement. can be careless, irrational, silly. Failure to check facts can be neg not reckless. Refusal to apologise may be consistent with honest belief. Malice is hard to prove bc personal animosity/extreme language usually not enough by itself
       • Lange extension
         • Lange: came between Reynolds and Jameel. CA delivers first judgment and finds privilege. HL delivers Reynolds and sent Lange back to CA, who mostly reaffirms original approach.
         • ratio: 1. a statement published generally? 2. concerning representatie and responsible govt? 3. about anyone in P or going to be, and their capacity to meet public responsibilities? 4. matter of public concern? 5. width of PC justifies extent of publication?
           • 6th point added by 2nd CA: to attract privilege the statement must be published on a qualifying occasion. indepth article in a serious pub about a politicain vs throwaway criticism in a motoring magazine. any "bona fide communication in the cours eof political discussion". Look at: who publishes, who's the audience, what's the pub's content. Not very high threshold. Limits (3) to quialifing occasions only. Media don't have to prove responsiblity, just that it was political discussion.
         • as Lange expands right to publish, also makes it easier for P to prove malice. P proves irresponsibility (using Reynolds, seriousness of llegations, scope of pub) to defeat privlege. Whereas in UK D proves responsibility to get privilege. Easier test than Horrocks, as don't have to get inside D's head, just look at their actions, objective. Newspaper rule (that D doesn't have to disclose source pre-trial) may need loosening for P to prove malice. P can get source if can show that the PI in disclosing the source outweighs likely adverse impact on source AND general flow of info to media thru confidential sources.
         • why doesn't NZ follow UK?
           • Different conditions. MMP means that whole country has an interest in what is going on with all parties. Official Info Act shows that gvt is willing to be scrutinised. NZ media also more responsible, less competition between papers, less allegiance with political parties.
         • Vickery
           • until recently, only CA case involving Lange. V argued QP for saying local council "criminal irregularities". Wanted extension of Lange to senior civil servants. Councillors didn't sue, prob cos elected. Denied bc: allegation of crim conduct is a "far cry" from political discussion. Also the Ds weren't elected or poliy makers. Not in PI to vent crim allegations thru media, allows trial by media. Doesn't necessarily narrow Lange, as not an occasion of QP anyway.
       • UK developments
         • Reynolds: politicl info should not be a new category of QP. Need to provide adequate protection for reputation. Lord Nicholl's 10 factors (about responsible journalism): seriousness of allegation; nature of info (public concern); source of info; steps taken to verify info; status of info; urgency of the matter; whether sought p's comment; whether had p's side of the story; tone of article; circs of pub. < use this test to show irresponsibility under Lange. D has burden of proof, defeated by malice, source doesn't ahve to be disclosed usually.
           • No generic privilege for political commentary. Courts shoud be slow to conclude that a pub was not in PI, especially if in field of political dissent. Reynolds lost.
         • Jameel
           • 10 factors aren't hurdles/checklist, just guide. Flexible approach. Upheld public interest defence. 1. a matter of PI? 2. inclusion of def material justified? (nexus) 3. responsilb e journalism?
     • how is it defeated? 1. excess of privilege (telling too many people). 2. malice (Horrocks, codified in dA)

6. True facts = truth. True facts + opinion = honest opinion. False facts = qualified privilege.