New Zealand defamation law strikingly favours plaintiffs. Sure, the Thai monarchy could be said to enjoy a certain degree of power, in view of the 25-year prison sentence imposed earlier this year on a businessman for some Facebook musings. But compared at least to their more temperate Common Law brothers and sisters, plaintiffs in New Zealand enjoy considerable advantages.
First up is New Zealand’s multiple-publication rule, under which in the online era – pointedly – a fresh cause of action accrues each time a third party accesses the impugned content. This means there is effectively no limitation period for publications that remain online.
By contrast, in the United States (see Firth v New York, 747 NYS 2d 69 (2002)) and in England (see the notes to section 8 of the Defamation Act 2013), the single-publication rule means a cause of action accrues only when the material is first accessed. Further, it seems only a matter of time before the Australian legislature joins up to this position (Australian Law Reform Commission Serious Invasions of Privacy in the Digital Era. ALRC Report 123, 2014, at [10.99]).
A second advantage enjoyed by New Zealand plaintiffs is more technical – in the formulation of one’s claim. In England, Canada and, to large degree, Australia, defendants may, under the Polly Peck ([1986] QB 1000), Lucas-Box ([1986] 1 WLR 147) and Control Risks ([1990] 1 WLR 183) lines of authorities, plead that the allegedly defamatory words bear alternative meanings to those pleaded by the plaintiff, and seek to defend the claim in respect of those alternative – and invariably less stinging – meanings.
New Zealand’s Court of Appeal, however, has long rejected this approach (Broadcasting Corporation New Zealand v Crush [1988] 2 NZLR 234 (CA); reaffirmed in Television New Zealand v Haines [2006] 2 NZLR 433 (CA)). As a result, defendants in New Zealand must justify their words or opinions along the partisan battle lines drawn by the plaintiff. This means that, at trial, New Zealand plaintiffs can prosecute claims that are framed favourably towards their position.
It might be thought that, in order to offset this advantage, New Zealand courts might police a stricter threshold in respect of plaintiffs’ pleaded meanings – i.e. that they would be more willing to strike out ‘strained’ meanings more easily. But in practice that hasn’t appeared to be the case. See, for instance, the Court of Appeal’s willingness in Murray v Wishart ([2014] 3 NZLR 722) to find that a large number of wide-ranging meanings – many of which based on inference allegedly deriving from the words complained of – were indeed capable of arising.
In addition, in a series of recent judgments the Court of Appeal has extended the context, or field of enquiry, in which pleaded meanings may be assessed. As a result of the Court’s judgments in Smith v Dooley ([2013] NZCA 428), Young v TVNZ ([2014] NZCA 50) and Murray v Wishart ([2014] 3 NZLR 722, 729-731), the law in New Zealand currently seems to be that, depending on the circumstances of publication, a plaintiff may rely on other publications made subsequent to that complained of – even up to a year afterwards – to support the allegedly defamatory meanings said to arise. Moreover, this includes other publications by different publishers, and through different modes of publication.
It is likely this state of affairs departs undesirably from the principle that the meaning of words must be determined as at the time of the publication, otherwise their construction is subject to change with the passage of time (Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822). But until this matter is addressed, plaintiffs in New Zealand would seem to be bolstered in their efforts to derive defamatory meaning from sources outside the publication at issue.
A further advantage our New Zealand plaintiff enjoys is one’s legislative right to a jury trial (Judicature Act 1908 (NZ): s 19A). In England, at least, jury trials are now the exception rather than the rule (see s 11 of the Defamation Act 2013). Of course, an argument could be mounted that, with effective counsel, the right to trial by jury is just as much an advantage for crafty defendants as for wily plaintiffs. However, it seems to be the case that, after simmering in the heat of the trial court, what may begin as a somewhat trivial claim can ultimately end in significant damages – particularly when a media organisation is the defendant. By contrast, it is arguably more difficult for defendants to persuade juries in the same vein: to establish the often-technical elements of defences. It is not called the “plaintiff’s tort” for nothing.
On the subject of trivial claims, it is further noted that, despite several opportunities, New Zealand courts have so far refused to adopt the doctrine in Jameel v Dow Jones & Co Inc ([2005] QB 946). Prevalent in England, and with early judicial antipathy now cooling in Australia (Bleyer v Google Inc [2014] NSWSC 897), this doctrine allows defendants to apply to strike out claims that may be characterised as trivial: where it is plain no substantive harm has been caused and the “game is not worth the candle”. In New Zealand, though, this effective pre-trial tool is missing from a defendant’s arsenal.
The ability of English courts to excise trivial claims from the daily court lists has been given legislative punch with the enactment of section 1 of the Defamation Act 2013, which requires plaintiffs to surmount the “serious harm” threshold in order to establish liability. If there is a bright spot to be found in New Zealand’s recent jurisprudence, it is that the genesis of England’s serious-harm threshold – Tugendhat J’s analysis in Thornton v Telegraph Media Group ([2010] EWHC 1414 (QB)) – found favour recently in Dobson J’s decision in CPA Australia v NZICA ([2015] NZHC 1854 at [120] and [222]). His Honour’s obiter comments could indeed provide the backbone for adoption of a sensible minimum-harm threshold.
Legislative change in England has also broadened defences to expressly cover public-interest statements, website operators, scientists and academics (Defamation Act 2013, ss.4-6). But with New Zealand’s anachronistic Defamation Act 1992 ruling the roost, it is left to case law – spasmodic as it generally is – to bring New Zealand’s defamation-law principles into the 21st century.
Finally, damages for defamation in New Zealand can run remarkably high. It is true that a jury’s award in 1996 of $1.5 million was lowered from the Bench to $650,000 (Quinn v Television New Zealand HC Auckland, CP 1098/90, 26 November 1996). But in 2011, the Court of Appeal upheld a High Court Judge’s award of $900,000 (Siemer v Stiassny [2011] 2 NZLR 361). Compare this to Australia, which has a legislative cap on damages for non-economic loss (currently AUD$366,000)( See Defamation Act 2005 (NSW): s 35), and England, where there is an effective ceiling for libel damages of £300,000.
Putting all these factors together, then, in maximising your advantages as a plaintiff under New Zealand law, you could look to sue the publisher of an online article first posted in, say, 1995. You could then go ahead and plead considerably strained meanings in full knowledge that the defendant would not be entitled to plead alternative ones, and with confidence they would likely survive any strike-out attempt. You could hunt around for publications from different publishers – even those published up to a year following your doomed defendant’s – to broaden the context in which the meaning of the words complained of may be construed. Yes, your claim could be rather tenuous and your reputation have suffered no damage. But, so long as you can establish a technical cause of action, then the defendants, with no recourse to the Jameel doctrine, would be stuck defending it though to trial. Finally, if you are able to convince a High Court jury – which naturally you will elect as of right – into awarding you $1 million in damages, you can reasonably expect the award to be upheld on appeal. Best of all, with no change apparent on the parliamentary chopping blocks, your plaintiff’s hegemony looks set to stay for the next round, too.
Forum shoppers take heed: New Zealand’s doors of justice are open for business!
Ali Romanos is a Wellington defamation lawyer. He runs the website Defamation Update and Twitter feed @defamationnz.
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