Politics and Defamation: A Case of Kiwi Humbug
New Zealand Law Journal, pg. 265, 1972
7 Pages Posted: 9 Jan 2013 Last revised: 23 Feb 2015
Date Written: 1972
Recent incidents regarding libel in New Zealand have raised serious issues about the place of libel actions in New Zealand political life. This paper considers the development of libel actions in New Zealand common law, discusses the philosophy behind defamation and freedom of expression, and compares New Zealand’s law to the United States approach. The law of defamation poses serious problems for the media and others who publish material which may reflect upon the reputation of others. In some ways it is stricter than other branches of tort law. Defamation has always smacked of strict liability rather than negligence. Such risks cause the New Zealand media to engage in a good deal of self-censorship.
The United States Supreme Court in the American case New York Times v Sullivan held that State law could not award damages to a public official relating to his or her official conduct unless he or she could prove that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. The key analogy was with seditious libel, which is incompatible with democracy because seditious libel punishes those who libel the government. Political freedom is in dire jeopardy when the government can silence its critics. The new constitutional privilege in the United States can be understood as an extension of the common law defence of fair comment. But the comparison is somewhat misleading because the constitutional privilege is so much wider. It extends to false facts. Under constitutional malice the onus is on the plaintiff to prove malice with convincing clarity. In later cases, the Supreme Court broadened protection to extend to statements made regarding “public figures”.
It is plain that politicians and other public figures in New Zealand are not reluctant to sue and they often succeed. Journalists engaged in investigative reporting will frequently get their facts incorrect. The more sensitive the issue the harder their task. The law of defamation as it is developed in New Zealand serves to dampen down public debate. There is nothing free, uninhibited and robust about freedom of expression in New Zealand. We will not have such debate unless the libel laws are altered.
Keywords: libel, defamation, free speech, freedom of expression, New York Times v Sullivan
JEL Classification: K19
Suggested Citation: Suggested Citation