Conservative Party leader Colin Craig's tilt at a defamation claim has revived the tension between acerbic political dialogue and the right of politicians to protect their reputations, says media-law barrister, Ali Romanos
Craig and Norman are not the first politicians to tango in defamation suits. Since the 1970s, such politicians have included the likes of Muldoon, Jones (Bob), Templeton, Douglas (Roger), Lange, Peters (Winston), Banks, Bolger, Prebble, Laws, Shadbolt, Jennings, Clark (Helen), Collins, Mallard, Little, Mitchell and Key.
Yet New Zealanders have a rich history defending political speech – whether it emanates from the media or warring politicians. On 19 May 1911, a Wellington jury rejected a libel claim brought by the then Leader of the Opposition (and later Prime Minister), William Massey, against The New Zealand Times. The newspaper had published a cartoon which Massey argued implied he was a liar. The jury, though, found that it “was a political cartoon pure and simple and was not libellous”, a verdict upheld by the Privy Council.
New Zealand’s real fortification of political speech, though, came nearly a century later, when the Court of Appeal in Lange v Atkinson – assessing the claim of another former Prime Minister – extended qualified privilege to cover a novel category: “political discussion”.
Quite prudently, the Court of Appeal in Lange extended the privilege to cover speech directed not only at incumbent politicians, but also those formerly of or aspiring to reach such office. On the other hand, it is possible courts since Lange have missed the opportunity to extend the privilege beyond Parliament’s doors. Indeed, it is difficult to rationalise why, in a democracy, honestly held views about any elected official are subordinate to those concerning national politicians.
In any case, defamation restrictions still remain intact. A politician bringing a defamation claim can succeed if, for one, he or she proves the defendant, in publishing the matter the subject of the claim, was “predominantly motivated by ill-will towards the plaintiff”. In practice, the “predominantly” aspect makes this threshold difficult to meet.
A plaintiff can also succeed if he or she proves the defendant “otherwise took improper advantage of the occasion of publication”. This latter test has been held to amount to reckless publication – that is, the privilege will be lost “if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement”.
It is interesting to consider also, albeit in rather broad strokes, how New Zealand’s protection of political speech stacks up internationally. Australia confers qualified privilege in respect of government and political matters, provided they are of public interest (read: public concern), and the publisher acts reasonably, while England and Canada confer more generic public-interest privileges. New Zealand, then, is more explicit regarding political speech.
In the US, a defamation-defendant-friendly jurisdiction, wide protection – driven by the First Amendment – is afforded not only for speech directed against politicians, but “public figures” generally. It is reasoned such people are better able to court publicity, and so can more easily respond to defamatory attacks. Protection will be lost only where a plaintiff proves “actual malice” – the defendant’s knowledge that the publication was false or reckless disregard of its falsity.
In Germany, a public-interest defence exists so long as a publication was crafted with requisite “journalistic care”. In Italy, further restrictions on political speech prevail: protection exists only where a publication has “social utility”, is written in a “sober” form, and is ultimately true. In Brazil, a “truth of the matter” requirement makes for a more restrictive framework than New Zealand’s. Meanwhile, at the more draconian end, in Russia there are no added protections for politically directed or public-interest dialogue, while in China, political-speech freedoms are rather non-existent. For instance, publications that promote an independent Taiwan, or impugn the integrity and political wisdom of Chairman Mao, are expressly criminalised.
But as to why political speech is worth affording privilege, the best articulation is probably that of Lord Diplock. In Horrocks v Lowe, a 1970s English case which centred on a speech at a town meeting, His Lordship put it thusly:
“The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.”
From an historical and international perspective, New Zealand prides itself on protecting political speech. So while in politics there may be a hazy line between “playing the ball” and “playing the man”, New Zealanders, by their core, are bound to view any claim like Craig’s as simply inimical to democracy; a sin against free speech. In this light, it is understandable why his claim was bound to meet scorn.
Ali Romanos is a media-law barrister based in Wellington.