Canterbury Law Review
Last Updated: 22 November 2013
MEDIA LAW IN NEW ZEALAND
By John Burrows QC & Ursula Cheer, Lexis Nexis New Zealand (2010), ISBN:9781877511226
Media law as a discrete topic has come a long way in the 37 years since the first edition of Professor Burrows text was published under the title “News Media Law in New Zealand” in 1974. The latest (sixth) edition is in large part the work of Ursula Cheer, who co-authored the fourth (1999) and fifth (2005) editions with Professor Burrows.
Earlier editions of Media Law in New Zealand have always been regarded as “the bible” by those who practice in this constantly changing and intensely interesting area of law. A quick skim of the summary of contents illustrates the diverse subjects that must be navigated by those involved in or advising the media on a daily basis. Defamation, copyright, breach of confidence, privacy, court reporting, and contempt are all substantial topics in their own right. This latest edition does not disappoint. It continues to provide comprehensive and authoritative guidance on all of these areas, while incorporating the vast number of developments in the five years since the last edition; including confirmation from the Supreme Court that statements made by third parties may not be used as particulars to prove the defence of truth1; when the reporting of current events will not constitute fair dealing
for breach of copyright purposes2; the liability of third party recipients of
confidential information3; the parameters of the legitimate public
concern defence to a claim of breach of privacy4; the application of
The In-Court Media Coverage Guidelines5; the latest attempt by the
Court of Appeal to reconcile the presumption of innocence with the presumption
of openness in the law
relating to suppression6; the new regime
applying to access to court documents7; the mitigating effect of time
on material that has the potential to prejudice a fair trial8; and
the impact of s 68 of the Evidence Act 2006 for the protection of
sources9. The rate of change in this area of the law is only
exceeded, perhaps, by the rate of change in the media industry
* Robert Stewart B.Com, LLB (Canterbury, 1991) is a partner with Izard Weston, Wellington
1 APN NZ & TVNZ v Simunovich Fisheries Ltd  NZSC 93;  1 NZLR 315.
2 MediaWorks v Sky Television (2007) IPR 205.
3 Hunt v A  NZCA 332;  1 NZLR 368.
4 Andrews v Television New Zealand  1 NZLR 220.
5 R v Crutchley (Hamilton HC, CRI-2007-068-000083, 16 May 2008, compare R v Sila
 NZHC 637;  NZAR 294).
6 R v B  NZCA 130;  1 NZLR 293.
7 Criminal Proceedings (Access to Court Documents) Rules 2009 and High Court (Access to
Court Documents) Amendment Rules 2009.
8 Solicitor-General v Fairfax NZ & Pankhurst (Wellington HC, CIV-2008-485-705, 10
9 Police v Campbell  NZHC 2632;  1 NZLR 483.
As a student of Professor Burrows at the University of Canterbury during the late 1980’s I, like many others, was seduced by the clarity of his lectures. None of this clarity of expression has been lost in his text, and this edition is no exception. Those familiar with earlier editions will notice and welcome an identical layout of chapters. The ever expanding discussion in each chapter is self-evident from the significantly increased size – the fourth edition discussed the same 15 chapters in 487 pages, the fifth in 650. The sixth edition is now a whopping 841 pages, but each chapter remains an excellent summary of the law, making it the automatic first point of reference by those who act for media when letters of complaint from the aggrieved (or the Solicitor-General) begin to fall. Although each topic is dealt with in a thorough and authoritative way, I suspect the level of analysis is in some cases greater than most editors or journalists are looking for when attempting to tackle a thorny issue without the support (and, on most occasions, comfort) of their own legal advice. This is not intended as a criticism, for as a legal text it excels, but many editors and journalists will find some areas reasonably heavy going if they find themselves in the unfortunate position of having to make a decision regarding publication close to deadline.
There are, of course, specialist texts available on many of the 15 chapters that make up the book, but from the perspective a practitioner in the field this remains by far and away the best “one stop shop” text on media law in New Zealand. The two chapters on defamation are an excellent summary of the law – particularly the discussion relating to the defence of common law qualified privilege. The high water mark for this defence in New Zealand remains Lange10, but that must surely be seen as under threat from the
development of “public interest qualified privilege” in both the UK and
Canada. The authors seem to agree and believe Lange should be expanded to cover any matter of genuine public interest. The concept of neutral reportage is likewise seen as a good idea even though the Courts appear (at present) to be reluctant to make the leap. No doubt the proprietor of any media entity would welcome the expansion of those defences, provided of course a competitor’s chequebook was paying for the privilege.
It is pleasing to see increasing references to the impact of the internet, and no doubt future editions will devote greater space to issues such as name suppression, blogging, tweeting, online copyright issues, social media as a source of news, and requests or orders to take material “offline” to avoid prejudicing a fair trial. I suspect a separate chapter that addresses online issues would be a welcome addition, particularly given all “accredited” news media now operate with an online platform that breaks news as it happens and which is searchable many years later.
The final chapter discusses the impact of the New Zealand Bill of Rights Act
1990. Although there have been some comments that this
discussion has not been
given the prominence it deserves, particularly given the influence of s 14 on
the development of many other
topics discussed by the text, like the
authors’ treatment of all other topics I found this chapter an
10 Lange v Atkinson  NZCA 95;  3 NZLR 385 (Lange No 2), which should be read
in conjunction with Lange v Atkinson  3 NZLR 424 (Lange No 1).
choice for a closing chapter in a text on media law. In many respects the meaning and influence of sections 14 and 5, whether in relation to competing rights or justified limitations, are only now being more readily understood and applied by both lawyers and judges.
It is difficult to think of any area of the text that requires improvement, and any criticism does indeed feel like blasphemy as another reviewer has remarked, but given the wealth of information contained between the covers there is surely an argument for an improved index and paragraph numbering system – similar to the layout of Gatley11 on Libel and Slander would be worth considering. These are, however, minor grumbles for a resource that is so clearly head and shoulders above the competition.
This is, quite simply, an excellent text. For someone like me who deals with
media law issues on a daily basis my copy will, like
the previous editions I
own, soon become dog-eared, littered with pencil marks, highlighter and Post-it
notes. It is an indispensible
resource not only for media lawyers, editors and
journalists, but those who practice exclusively in the areas of defamation,
contempt, as well as crown prosecutors and defence lawyers dealing with
applications for suppression orders and In Court Media Coverage
will also find
it extremely useful as well.
11 Gatley on Libel and Slander, 11th edition (2008), Sweet & Maxwell