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Tuesday 13 October 2015


The Defamation Game

Posted in: Comment
By Craig Young - 28th February 2014

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What is one to make of Colin Craig's litigation against Greens Co-Leader Russel Norman, over claimed statements that Craig wanted women back in the kitchen and LGBT community members back in the closet?

Defamation is a tort, or civil wrong. In New Zealand, it is governed by the clauses of the Defamation Act 1992, although the law of defamation was first spelt out within the British Commonwealth in Parminter v Coupland (1840). This defined defamation as “a publication without justification or lawful excuse [that]..is calculated to injure the reputation of another and exposing him [or her]..to hatred, contempt or public ridicule.”

At present, a Court of Appeal case, New Zealand Magazines versus Hadlee (1996) provides the best case law summary of the interpretation of the law within New Zealand. In this case, the Court of Appeal noted down elements of a test whose requirements that should be met if an aggrieved party wants to establish that a defendant is liable for defamatory publications.

Bearing in mind the element of injury to the reputation of another, and exposure to contempt or public ridicule, it establishes the principal element of the test as what a reasonable, ordinary person would understand. Let it be added that this person should possess ordinary intelligence, general knowledge about the surrounding world, and should be sufficiently worldly in their social life. Finally, the test also relies on what an ordinary reasonable person would discern from reading the publication, given the words used. Context is particularly important, and strict liability can result from these interpretations of meaning.

An Australian case, Rivkin versus Amalgamated Television Services Pty Ltd (2001), held that allegations of homosexuality might no longer expose one to hatred, or contempt, Rivkin also held that associated defamatory allegations about hypocrisy or infidelity might also be actionable.

What are the defences? If a defendant can establish that the content of their statement is true, then the plaintiff will lose the case. This is related to Section 8 of the Defamation Act 1992, which established these grounds for truth, or matters not markedly different from it. If a plaintiff sues on particular meanings, then the defendant is required to prove that the allegations are true in substance. There is a defence of honest opinion, but the defendant must prove that they actually hold such an opinion. As for rumours and hearsay, they are treated as if they were a direct statement, and are similarly actionable- see Truth New Zealand versus Holloway (1961).

In the case of journalists, there is also a qualified defence of "honest opinion" in the context of the media and free speech. This arose when former New Zealand Prime Minister David Lange sued political scientist Joe Atkinson after Atkinson published a North and South article that referred to the former Prime Minister as a "lazy" occupant of that office. The courts found for Atkinson, the defendant in that context. Not to have done so would have been to erode freedom of expression and speech, cornerstones of human rights and civil liberties within democratic societies. Lange v Atkinson (2000) is still New Zealand law when it comes to Section 19 of the Defamation Act 1992.

So, if it is a defence that content is valid, then how does this pertain to any hypothetical case related to the Norman/Craig conflict of statement and interpretation? Certainly, no-one is arguing that Colin Craig may not enjoy convivial friendships with LGBT individuals in this context, as he very well might. However, according to his own Conservative Party's "Ask Colin" questions page, he wants to restrict abortion access for competent minors under sixteen and query the decisions of Child Youth and Family in cases of claimed child abuse. His party also made a submission to the Local Government and Environment Select Committee on the Manukau City Council (Regulating Prostitution in Specified Places) Bill, supporting the passage of that bill, which has been condemned by medical and social service professional groups in that same context because it will endanger the lives and health of street sex workers. [
[It may also intend to abolish the Ministry of Women's Affairs on the basis of "limited government." The Children's Commissioner and Families Commission might be similar targets on the pretext of 'limited government' and 'fiscal responsibility' and Child Youth and Family might find its staff sharply reduced.]
There is a stark gender imbalance in terms of his Conservative Party list, notwithstanding the fact that Christine Rankin, former WINZ Chief Executive and Families Commissioner, is Conservative Chief Executive. Individual exceptions, however capable and professional, are just that, one might argue. The above are clearly anti-feminist objectives, regardless of internal feminist dissension over the morality of sex work.

What about heterosexism? Granted, Craig is enough of a political realist to acknowledge that the decriminalisation of male homosexuality, the passage of LGB-inclusive anti-discrimination laws and civil union legislation are faits accompli and irrevocable now. He has claimed that lesbian/gay sexual orientation is a "choice," despite scientific evidence to the contrary from many medical, psychological and other scientific associations that it is either genetic or the product of indelible early infant developmental cues. He campaigned against marriage equality and inclusive adoption reform contained within that legislative change, although his activism was intermittent and he later acknowledged after the event that it would be futile to hold an anti-marriage referendum, although he has also stated that straight parents are "superior" to lesbian/gay parents, despite evidence-based research findings to the contrary from mainstream pediatrics and developmental psychology.

Craig has acknowledged that he is a conservative evangelical/fundamentalist Protestant Christian. He has said that while he was brought up within the Baptist denomination, he does not currently attend church (although this sidesteps any questions about parachurch organisational membership within conservative evangelical support networks). Women are not ordained within fundamentalist churches because of their belief in "male headship", polarised gender roles and hierarchy. This is called "gender complementarity." Similarly, the same premise of gender complementarity rules out same-sex relationships or sexual orientation as durable, constructive, nurturant and supportive.

Russel Norman could conceivably argue that while Colin Craig might well have strong friendships with feminist women or LGBT individuals, this should be seen as immaterial, for that is not under debate. His own recorded and verifiable personal beliefs would lead to discriminatory and harmful policies if given the validation of law. It is those effects, not whatever his personal attitudes might be, that should be at stake here.

Please note that I am not a qualified solicitor or barrister, so there should be no absolute reliance on this material in the context of any forthcoming publications. Nor are they intended to refer specifically to any particular current media article related to the Prime Minister. This is intended as fair comment on a hypothetical course of action, in the public interest.

Recommended:

John Burrows and Bill Wilson: Media Law: Wellington: New Zealand Law Society: 2003.
Michael Giloolly: The Law of Defamation in Australia and New Zealand: Sydney: Federation Press: 1998.
Steve Price: “Defamation” Media Law Journal: http://www.medialawjournal.co.nz/?page_id=273
John v Guardian News and Media Ltd [2008] EWHC 3066 (QB)
Lange v Atkinson [2000] 3 New Zealand Law Reports 385

Craig Young - 28th February 2014

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