Innovation and Reform: Applying New Zealand's Public Interest Defence in Defamation to Social Media and Blogs

Abstract

The proliferation of social media and the rise of 'citizen journalists' were one of many reasons why the Court of Appeal in Durie v Gardiner recognised the existence of a public interest defence of responsible communication to defamation in New Zealand. The courts, however, are beginning to take a restrictive interpretation of the criteria under responsible communication to the detriment of social media users and bloggers, following experiences in England and Canada. This paper argues that the defence should be reformed for a social media age by adopting a standard based on reasonableness along Hilary Young’s model in Canada, replacing the criteria under responsible communication for all types of media in New Zealand. It then explains how a sliding scale derived from the New Zealand Bill of Rights Act 1990 can be incorporated into the defence. The paper also recommends the creation of multiple voluntary codes for social media which can inform the meaning of reasonableness and the inclusion of statements of reply as a relevant factor. It concludes by offering an example of where reasonableness can lead to a different result from responsible communication.

Keywords: defamation, "public interest defence", "social media", blogs

JEL Classification: K00, K13