New Zealand's Zombie Defamation Survival Guide: Solving the Grave State of Defamation Law with a Single Publication Rule
33 Pages Posted: 14 May 2020
Date Written: September 2, 2019
"Zombie defamation" has long been the term used to describe the application of the multiple publication rule to defamation claims. While in New Zealand a defamation claim can only be brought within two years of publication of the defamatory statement, the multiple publication rule means that every time a new person accesses the defamatory material, there is a new publication. This renders the two-year limitation effectively redundant for online publications. Although both Australia and Canada take the approach used by New Zealand courts, the United Kingdom has followed the approach of the United States in adopting the single publication rule. The single publication rule means that publication occurs from the very first publication only. This paper argues that New Zealand should follow the United Kingdom in adopting the single publication rule to protect publishers from ostensibly indefinite liability.
Firstly, this paper will outline the rule in New Zealand and how it applies. It will then compare this to the single publication rule as applied in the United States, pointing to the United Kingdom as an example of a jurisdiction which has implemented the single publication rule through statute. The paper will then highlight the problems with the multiple publication rule and why New Zealand should change, including examining the unjust consequences that could arise from failing to change the rule to meet modern technological advancements, how such change would relate to the New Zealand media law climate and close potential gaps in our system and other policy considerations. Finally, it will assess whether the New Zealand courts are ready and willing to accept a single publication rule, including considering why Australia and Canada have not followed the approach of the United Kingdom.
Keywords: defamation, publication, "limitation act", "indefinite liability"
JEL Classification: K00, K13
Suggested Citation: Suggested Citation