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Defamation law problems warrant review

A number of issues have arisen in interpreting the Defamation Act 1992 which have divided lawyers specialising in defamation and a full review should be made to ensure public interests are appropriately balanced, the New Zealand Law Society says.

The Law Society has released its comments on the Ministry of Justice’s 2012 regulatory scanning programme in relation to tort legislation.

It says section 8 of the Defamation Act, which covers the defence of truth and alternate meanings, allows a defendant only to plead the defence of truth to the meaning alleged by the plaintiff.

A Court of Appeal decision in 1986 means that the defendant cannot plead and attempt to prove a lesser defamatory meaning than that alleged by the plaintiff. With the new Defamation Act 1992, some lawyers expected that alternate meaning defences – known as Polly Peck defences – would be permitted in New Zealand. However, a further Court of Appeal decision in 2005 said the Act should be interpreted in such a way as to exclude Polly Peck defences.

“The effect of the decision is to move New Zealand away from other common law jurisdictions,” the Law Society says.

While such a move might be unwelcome, the Law Society says it is not enough to justify a change in the law.

“However, the real concern for some practitioners is that it provides a tactical advantage to plaintiffs. It may be true that not allowing such defences simplifies pleadings but it should not do so at the expense of fairness to defendants.”

The Law Society says it is desirable to review whether section 8 should be amended to allow Polly Peck defences.

The Law Society’s comments also point to a lack of clarity in section 38 of the Defamation Act, which is entitled “particulars of the defence of truth”. A Supreme Court decision in 2010 noted that, despite the heading, the section should not be viewed as applying to the defence of truth, but only to the “rolled-up plea” in support of honest opinion.

The Law Society says that the scope of the section should be clarified to remove any doubt as to its application.

A further division among defamation lawyers occurs with the Supreme Court’s view that statements by a third party cannot be relied on as particulars or evidence to support a defence of truth, unless the defendant can prove the truth of the underlying allegation.

“The potential for the decision to have a chilling effect on the media in New Zealand has been identified as a concern but the opposing view is that if serious allegations are made, a proper factual foundation for making them must be made out.”

This is another area where consideration should be given as to whether a change in the law is warranted to permit reliance on statements from an objectively reliable source, the Law Society says.

Other sections which are identified as posing problems are section 43 (claims for damages) and section 47 on notice of multiple actions (described by the Law Society as “undesirably vague”).

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Last updated on the 3rd June 2015