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Tipping, The Right Honourable Justice --- "Journalistic Responsibility, Freedom or Speech and Protection of Reputation striking the Right Balance between Citizens and the Media" [2002] WkoLawRw 1; (2002) 10 Waikato Law Review 1

THE HARKNESS HENRY LECTURE

JOURNALISTIC RESPONSIBILITY, FREEDOM OF SPEECH

AND PROTECTION OF REPUTATION –

STRIKING THE RIGHT BALANCE BETWEEN CITIZENS AND THE MEDIA

BY THE RIGHT HONOURABLE JUSTICE TIPPING[*]

Section 14 of the New Zealand Bill of Rights Act 1990 states that:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

But the freedom of speech which is there affirmed is subject to any reasonable limit prescribed by law which may be demonstrably justified in a free and democratic society. Section 5 of the Bill of Rights is the vehicle which thereby allows freedom of speech to be curtailed to the extent appropriate to accommodate other rights and values. Hence the law of defamation can co-exist with section 14, albeit in difficult cases there will always be tension between the two, which the Courts must resolve. Freedom of speech does not in general terms entitle people to speak falsely of others to the detriment of their reputations. That would not be for “the common convenience and welfare of society”, as Parke B described the rationale for what became an occasion of qualified privilege, in the influential early case of Toogood v Spyring.[1]

Hard-won reputations are entitled to protection as well as freedom of speech. Nevertheless the common law right to protect your good name must co-exist with the right of others to speak freely about you and thus, in some circumstances, falsities will not be actionable. In the days before mass media communication had developed to its present extent, the accommodation of the competing interests was relatively straightforward. Historically it developed largely through the doctrines of fair comment and qualified privilege. In respect of the latter, the law came to recognise that there were circumstances in which the malice that would ordinarily be inferred from the speaking of falsehoods about another person could not reasonably be inferred. I developed this theme in my separate judgment in the first Lange case.[2]

The familiar duty/interest test for qualified privilege grew up on this basis. It was based on the notion of reciprocity of interest and duty between the speaker or writer and the person or persons to whom the words were addressed. The privilege could be defeated if the malice which was not presumed could be expressly proved. Such malice was called express or actual malice to distinguish it from the malice that would otherwise have been presumed from the speaking of the falsehood. Express or actual malice in this sense can now be regarded as subsumed in the concept of misusing the occasion of privilege adopted in section 19(1) of the Defamation Act 1992. Misuse of the occasion is deemed to have occurred if spite or ill-will can be demonstrated but is not confined to those concepts. Section 19(1) provides:

(1) In any proceedings for defamation, a defence of qualified privilege shall fail if the plaintiff proves that, in publishing the matter that is the subject of the proceedings, the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication.

By dint of its historical origin and the associated criteria, qualified privilege was, until recently, seldom available for publications directed to a wide audience. It was difficult under the traditional approach to the privilege to conclude that the public at large, or a substantial section of the public, had the necessary legitimate interest in the publication to raise in the publisher a reciprocal duty to publish. A matter which was of interest to the public was not one which per se invested the publisher with a duty to publish it to the general public.

But the historical approach to the interest/duty equation has had to respond to two relatively recent phenomena. The first is the rise of the mass media. The second is the growing emphasis which both the common law and constitutional or quasi-constitutional instruments have been giving to freedom of speech. The response of the law of qualified privilege to these developments has been influenced also by the significant fact that malice in the traditional sense is usually difficult to demonstrate when the publication is one involving the mass media. And of course at common law (as under section 19) the onus is on the plaintiff to show that the defendant publisher was actuated by malice (or now its statutory equivalent).

The challenge of accommodating all these strands into a coherent legal structure, which adequately balances the competing interests, reached the top Courts in Australia, England and New Zealand at much the same time. David Lange, the former Prime Minister of New Zealand, has been the leading contributor to the jurisprudence in the Antipodes. Albert Reynolds, a former Prime Minister of Ireland, has been the main contributor in the United Kingdom. It is not my purpose to survey in any detail the judgments in the various cases.

The Australian cases came first. The decisions of the High Court of Australia were influenced by constitutional factors and also by the particular terms of the Defamation Act 1974 (NSW). It can fairly be said that the High Court laid special emphasis on the idea that “freedom of communication on matters of government and politics is an indispensable incident of [the] system of representative government”.[3] A counterbalance to that freedom, namely, the taking of reasonable care, was able to be found in the statute, either directly or by analogy, so the High Court was not faced with the difficulties other Courts have faced in finding an appropriate control.

In my judgment in the first Lange case in New Zealand, I introduced the idea that responsibility ought to be the price of the expanded freedom of expression being given to the mass media.[4] I said:

If the community could feel confident that all those exercising their right to freedom of expression would show the responsibility which is the price of that freedom, the decision which we must make on behalf of the community would be easier. But it is a sad fact that the necessary responsibility is not always shown.

This use of the concept of responsibility derived in part from Article 19 of the International Covenant on Civil and Political Rights 1966. Because of difficulties I then saw,[5] I stopped short of suggesting that the necessary responsibility should embrace the taking of reasonable care by the publisher. I did, however, record that I remained anxious lest the balance be found wrong without such an ingredient. My concern was assuaged to some extent by the possibility of developing the section 19 concept of misusing the occasion by treating as relevant to that issue the amount of care which the publisher of the defamatory statement had taken to verify the facts. In words which were cited by Lord Nicholls of Birkenhead,[6] I said in Lange No 1:

While the news media are not generally liable for negligence as such in what is published, the issue here relates to the availability of a defence to a claim for defamation, not to liability for negligence as a cause of action in itself. It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others, should not also to this extent be required of the news media. But these are issues for another day.[7]

I there reverted to the idea that qualified privilege should not be available if the publisher did not use the power in its hands in a responsible way.

The judgments in Lange No 1 were delivered on 25 May 1998, argument having taken place on 10 November 1997. The judgment of the Court of Appeal in England in Reynolds[8] was delivered on 8 July 1998 by Lord Bingham of Cornhill, the then Lord Chief Justice. The other members of the Court were Hirst and Robert Walker LJJ. The Court of Appeal introduced into the familiar interest/duty dichotomy a third criterion which they called the circumstantial test. What the Court effectively did was to isolate as a separate ingredient factors which would earlier have been subsumed under the duty/interest inquiry. But there was, however, some lack of clarity in relation to the traditional divide between occasion and misuse. I am inclined to think that no substantial change in the law was thereby involved, only an analytical shift which served to highlight that the “occasion” had to be one which attracted privilege.

When Reynolds reached the House of Lords, their Lordships disapproved of the addition by the Court of Appeal of the so-called circumstantial test. But they themselves substantially merged factors which had hitherto been regarded as relevant to misuse into the question whether the occasion was privileged at all. The most significant factor which led their Lordships to adopt this approach was, at least implicitly, a concern that the onus of proving misuse lay on the plaintiff. If misuse-type considerations were addressed earlier, at the existence stage of the inquiry, the onus would be on the defendant. Hence in this respect a better balance was seen as having been achieved between the parties, albeit the traditional role of the jury was thereby severely emasculated.

The Reynolds privilege in England now treats considerations which would hitherto have been addressed in the context of “malice” as part of the question whether the occasion is one of qualified privilege at all. In short, that question, under Reynolds, involves the defendant in showing (1) that the subject matter is of sufficient public concern; and (2) if so, that a sufficient degree of responsibility has been shown in making the publication.

The subject was recently addressed by the Privy Council in an appeal from Jamaica.[9] I had the privilege of sitting as a member of the Judicial Committee in this case and contributing to the judgment which was delivered by Lord Nicholls, the author of the leading speech in Reynolds. The relevant passage in the Bonnick judgment, for present purposes, is at paragraph 23 and reads:

Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputation of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.

As a result of Lange No 2,[10] the structure of the necessary analysis is different in New Zealand. This follows largely from our section 19(1), of which there is no legislative counterpart in England. Both countries now have a clear focus on the need for journalists to exhibit the necessary degree of responsibility before they can claim the benefit of qualified privilege. We in New Zealand view that issue as one affecting whether the occasion of privilege has been misused. In England it is part of the inquiry whether the occasion exists. Nevertheless, subject to questions of onus, in most, if not all, cases the substantive result ought logically to be the same.

What is more, the Privy Council has now moved to accept that the concept of exhibiting the necessary responsibility involves what was described as the “exercise [of] due professional skill and care”. Thus, the “objective standard of responsible journalism”, as it was put elsewhere in Bonnick, has now developed so as to require of journalists that they take appropriate care before they can avail themselves of the defence of qualified privilege.

Lord Cooke of Thorndon who, along with the rest of their Lordships in Reynolds, rejected the argument of the appellant for a generic or subject-matter based privilege for political speech, spoke of the power of the media and the much-increased facility for communicating information to the public, especially by television. His Lordship saw that feature of modern society as adding to the principles aimed at ensuring “journalistic responsibility”, a phrase which I have borrowed for the title to this lecture.

Where does this all leave us in New Zealand? In Lange No 2, when discussing the question of misuse of an occasion of qualified privilege, the Court of Appeal of which I was a member (post-Reynolds but pre-Bonnick) said that the purpose of the newly recognised privilege was to facilitate responsible public discussion of the matters which it covered. Being reckless as to the truth of what was published was regarded as a misuse of the privilege. Recklessness was said to include a failure to give such responsible consideration to truth or falsity as was appropriate in the circumstances. A cavalier approach to truth would result in the loss of the privilege. The privilege was given in the public interest on the basis that it would be responsibly used.

The Court acknowledged that the need to be responsible might in some circumstances come close to a need for the taking of reasonable care. That rather cautious statement should now be viewed in the light of Bonnick.

Let me try to summarise the position to this point. The traditional theory of qualified privilege distinguished between the occasion of privilege and misuse of it. The distinction was between the circumstances in which the privilege existed and those in which it was lost. That is the premise upon which the partial codification of this subject in section 19(1) of the Defamation Act 1992 proceeded. If an occasion of privilege exists, section 19(1) tells us when the privilege deriving from the occasion will be lost. In the case of Reynolds privilege most, if not all, of the circumstances giving rise to the loss of the privilege are now subsumed in the criteria for determining whether it exists. A Reynolds-type privilege, once found to exist, can hardly be lost. If the person seeking to establish the existence of the privilege has exercised the necessary responsibility to justify the privilege in the first place, it is difficult to conceive of circumstances in which that privilege, once justified for the particular occasion, could nevertheless be lost through misuse.

In New Zealand, substantially on account of section 19(1), we have a discrete two-step process. The first question is whether the occasion is a privileged one. The second is whether, if so, the privilege has been abused and hence lost. A defendant asserting the privilege in New Zealand must establish that the occasion justifies the privilege. If it does, the plaintiff can defeat the privilege by establishing misuse. That is a jury question, whereas the earlier question, whether the occasion was privileged in the first place, is for the Judge. It is possible to take the view that, although doctrinally inconsistent, the English approach which essentially involves the defendant having to prove proper use in order to obtain the privilege at all, represents a better balance between protection of reputation and freedom of speech.

In a piece on Media Law, Professor John Burrows has suggested that “the unitary test of Reynolds is altogether cleaner and easier to apply [than the Lange dual test]”.[11] Perhaps the way in which New Zealand law has developed shows the dangers of partial codification of the common law. The Reynolds unitary approach is difficult, if not impossible, to reconcile with section 19(1). There may be a lesson here for law reformers. Either leave the common law on a particular topic alone, or codify it completely. Partial codification may have unexpected and unfortunate effects on the way in which the common law can respond to changing social conditions.

There is a further point I wish to mention and it derives from the terminology adopted by the Privy Council in the Bonnick case. That terminology built on Lord Nicholls’ language in Reynolds.[12] You may recall that the Bonnick judgment, in summarising the Reynolds privilege, defined the subject-matter of the privilege as “matters of public concern”. The choice of the words “public concern” rather than the more familiar “public interest” was deliberate. The expression “in the public interest”, although capturing the rationale for the privilege, carries the risk of subject-matter slippage to “matters of public interest”. It is not necessarily in the public interest to publish to the world at large matters which are of interest to the public.

The concept behind the expression “matters of public concern” is designed to convey more exactly what the privilege is about. The use of the word “concern” does not necessarily signify worry, but it does signify that the subject-matter of the publication must be something about which the public is entitled to be informed. The subject-matter must be something about which the public has a right to know, as Lord Nicholls put it in Reynolds. The best composite phrase, in my view, is the one chosen in Bonnick, with the addition of the word “legitimate”, which was also used in this context in Bonnick, that is, the Reynolds privilege is available for a publication which deals with a matter of legitimate public concern.

I should note in passing that the expression “public concern” is used in clause 8 of Part II of the First Schedule to the Defamation Act 1992, and other comparable provisions overseas, with reference to qualified privilege for reports of public meetings. If the discussion at the meeting relates to any matter of public concern, a fair and accurate report will attract qualified privilege.[13] It seemed to me that the idea of a matter of public concern, used by Parliament in that context, was apt to capture rather nicely the ambit of what journalists should be able to publish under Reynolds qualified privilege, if acting responsibly.

What of the future in New Zealand? Lange privilege is subject-matter specific; it relates to political speech as there defined. Reynolds privilege is less specific. All it requires is that the subject-matter be of legitimate public concern. With the counterbalance of the need to show responsibility, which includes the exercise of due professional skill and care, I would not be surprised if we see developments in New Zealand expanding the Lange subject-matter to coincide with that in Reynolds, coupled with an overt acceptance that the price of the privilege, as expanded, is the need to show responsibility by taking appropriate care.

Although I can envisage an expansion of the present relatively narrow subject-matter of the Lange privilege to or towards the subject matter of Reynolds privilege, I can foresee problems in moving New Zealand law towards the more unitary approach of Reynolds. By using the word “problems” I am not to be understood as implying that a move towards a unitary type of approach would necessarily be desirable. I would keep an open mind on that. My point is that, whether desirable or not, the structural approach in New Zealand has been influenced, indeed largely dictated, by section 19(1), with ramifications in respect of onus of proof and the role of the jury. As to onus of proof, we will need to ask ourselves, when considering further developments, whether the plaintiff should have to prove misuse as opposed to the defendant having to prove proper use. In that respect section 19 would require amendment because at the moment it precludes any common law development on this point in New Zealand.

In England both aspects of qualified privilege (occasion and misuse) are now for all practical purposes in the hands of the Judge. In New Zealand occasion is for the Judge but misuse is for the jury; that was one of the fundamental premises on which the pre-Reynolds common law was based. In England the shift in onus has been accompanied by the erosion, one might say eradication, of the jury’s traditional role. It would, however, be possible in New Zealand to retain jury consideration of misuse issues but, subject to amending section 19(1), place the onus of showing responsibility (effectively negating misuse) on the defendant. The Judge would then rule, as always, on whether the occasion was privileged. If it was, the defendant would have to persuade the jury that the occasion had been responsibly used. That would involve the defendant in showing that it had exercised all reasonable skill and care and should therefore be excused from publishing what, ex hypothesi, was defamatory of the plaintiff. These are just some thoughts which may or may not be found worthwhile after fuller examination.

Before closing this discussion I thought it would be interesting to try framing a modern definition of or test for a privileged occasion. What I am about to propose is not intended to reflect exactly the present state of the law in New Zealand. It is designed to indicate the direction in which New Zealand law may develop, albeit further consideration and argument may change my present perception. I suggest that a succinct definition might be that an occasion of qualified privilege exists when the words in question are written or spoken on a subject which is of legitimate concern to the person or persons to whom they are addressed.

The rationale for the privilege is that it is more valuable to society as a whole to give protection to defamatory words in such circumstances than it is to protect individual reputations. The privilege will, however, be lost if the occasion is not responsibly used. That last sentence reflects the duality of the current New Zealand law. For the unitary Reynolds privilege the occasion can be described in a single sentence. It is when the words are responsibly written or spoken on a subject of legitimate concern to their addressee(s).

I should make it clear that I think that these definitions could apply to publications of differing widths; from the public at large to one-to-one communications. In this respect I envisage a synthesis between narrower and wider publications. The test of “legitimate concern” seems to me apt for a narrower communication as well as for communications involving the news media. Legitimate concern as between publisher and audience is the modern equivalent of the old duty/interest touchstone. The concept of responsibility is, in a sense, shorthand for proper use and not taking improper advantage of the occasion in terms of section 19(1). It is a concept of sufficient flexibility to be appropriate for all publications, whatever their width. Furthermore, it incorporates both the concept of honesty of purpose, which has been a feature of qualified privilege ever since Parke B used that expression in Toogood v Spyring,[14] and the need to take such care in making the statement as the occasion reasonably requires.

I appreciate that these definitions are at a high level of generality. So too was the earlier reciprocal duty/interest test. I doubt whether it is possible or indeed helpful to try to frame a more specific modern definition. Any definition must necessarily have sufficient generality to have general utility.

I would like to mention one further matter before I conclude. It concerns the relationship of the newspaper rule to qualified privilege as it affects the news media. The so-called newspaper rule protects all sections of the news media (not just newspapers) from having to reveal their sources. As was said in Lange No 2, the rule is designed to promote freedom of speech by allowing people to speak to the news media in confidence.[15]

Rule 285 of the High Court Rules, consistently with the newspaper rule, prohibits interrogatories which are designed to elicit sources. At trial the same general subject is dealt with by section 35 of the Evidence Amendment Act (No 2) 1980. Rule 285 is couched in absolute terms whereas section 35 is discretionary. The newspaper rule itself is not completely absolute; there is a special circumstances exception, albeit Woodhouse P saw the rule as almost absolute.[16]

At the end of our judgment in Lange No 2 the Court indicated that the absoluteness of Rule 285 should be the subject of further consideration. I understand that the Rules Committee is engaged on that exercise at the moment. The context of the Court’s suggestion was whether a media defendant should be allowed to have the benefit of both qualified privilege and the newspaper rule. As to that the Court said:

During the course of argument in the present case the question arose whether a news media defendant could rely on a defence of qualified privilege, while at the same time maintaining its reliance on the newspaper rule. On an occasion of qualified privilege the onus is of course on the plaintiff to demonstrate misuse of the occasion in terms of section 19 of the Defamation Act 1992. At issue may be the basis for an asserted belief in truth, or whether that belief was responsibly formed, but in any event the plaintiff is already at something of a disadvantage in having to establish the negative. We were pressed with the view that to allow a media defendant the benefit of both qualified privileged and the newspaper rule would be to place an unfair hurdle in the plaintiff’s path. It is apparent that some of Their Lordships in Reynolds were opposed to the qualified privilege sought by the newspaper in that case because of the difficulties which they considered the newspaper rule would create for plaintiffs.[17]

The whole question whether sources should be identified before trial is very much influenced by public policy as seen in the particular jurisdiction. Such policy is not immutable and both judicial and legislative reflections of it can change over time. The approach of this Court in the Broadcasting Corporation case and of the Rules Committee in Rule 285 should not therefore be regarded as set in stone. The relevant policy considerations must now recognise the ramifications of the extended range of qualified privilege as affirmed in this judgment. As has been pointed out by Michael Galooly, the Courts in Australia have recognised that inroads into the newspaper rule can be justified in the interests of achieving justice between plaintiff and defendant when qualified privilege is in issue.[18] For example, the High Court has held that a departure from the rule was permissible when it was “necessary in the interests of justice”.[19]

If in New Zealand the onus to show proper use of the privilege were to be placed on the media defendant, as is effectively the case with Reynolds privilege, the question whether, and if so how, to develop the newspaper rule and Rule 285 would be of less moment. A failure or unwillingness to disclose a source might mean that the media defendant could not satisfy the onus. But, as things stand at present, some might say that a plaintiff suing a media defendant which pleads qualified privilege, ought to have at least a Court-controlled opportunity to ascertain upon what basis the publication was made and thus be in a better position to establish irresponsibility, or to resist the defendant’s assertion of having acted responsibly. The Court could decide whether disclosure of sources was necessary to do justice in the particular case. If disclosure was ordered and the media defendant still remained unwilling to disclose, it could always avoid the need by withdrawing the plea of qualified privilege. I recognise that that would have tactical and substantive consequences but it might have to be the price of not revealing the source.

May I conclude by saying that I am pleased that the idea which I advanced in Lange No 1, that the price of qualified privilege for mass media communications should be an appropriate level of journalistic responsibility, now seems to have become accepted in the common law jurisprudence. I consider that that is about as good a balance as can be struck when reconciling the competing interests. In addition, the concept of legitimate public (or individual) concern seems to me to be as good a general subject-matter touchstone for mass media (or individual) qualified privilege as can be devised. Hence journalists would be protected from liability for defamation when writing or speaking on matters of legitimate public concern, provided that they have shown an appropriate level of responsibility and exercised due professional skill and care. Their right to freedom of expression in these circumstances would therefore be limited only by the reciprocal requirement of responsible and careful use of the power in their hands.

That seems to me to be a reasonable limitation on freedom of speech and one which is entirely justified in a free and democratic society. To assert otherwise would be to treat qualified privilege as a licence to be irresponsible and careless. In that observation I am building on the judgment of McKay J in Television New Zealand Ltd v Quinn.[20] That said we still have challenges in New Zealand as to how the law will develop from its present state. I have identified some of them and some of the options which will require careful attention as individual cases are decided.

[*] A Judge of the Court of Appeal of New Zealand.

[1] [1834] EngR 363; (1834) 1 Cr M & R 181, 193 and 194; [1834] EngR 363; 149 ER 1044, 1050; [1824-34] All ER Rep 735.

[2] Lange v Atkinson [1998] 3 NZLR 424, 471-472.

[3] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96, 106.

[4] [1998] 3 NZLR 424, 473.

[5] [1998] 3 NZLR 424, 474-475.

[6] Reynolds v The Times Newspaper [2001] 2 AC 127, 202.

[7] [1998] 3 NZLR 424, 477.

[8] [1998] EWCA Civ 1172; [1998] 3 All ER 961.

[9] Bonnick v Morris & Others, unreported, PC 30/2001, 17 June 2002.

[10] Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385.

[11] “Title?” [2002] vol? New Zealand (Universities?) Law Review 221.

[12] [2001] 2 AC 127, 203E.

[13] For a recent authoritative discussion of this privilege, see McCartan Turkington Breen v Times Newspapers Ltd.[2001] AC 277.

[14] Supra note 1.

[15] [2002] 3 NZLR 385, 404.

[16] Broadcasting Corporation of New Zealand v Alex Harvey Industries Ltd [1980] 1 NZLR 163.

[17] [2000] NZCA 95; [2000] 3 NZLR 385, 404.

[18] The Law of Defamation in Australia and New Zealand (1998) 88-91.

[19] John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54; (1988) 165 CLR 346, page?. Reference can also be made to New South Wales Law Reform Commission Report on Defamation (1995) para 10.21, under the heading “Revelation of Sources”.

[20] [1996] 3 NZLR 24, 45.