Torts to the Person 3

Defamation 3

Background 4

Opai v Culpan [2017] NZAR 1142 (HC) 4

Sellman v Slater [2018] 2 NZLR 218 5

Strict Liability 8

Elements of the Tort 10

Publication 11

Repetition rule 12

Limitation 13

Loutchansky v Times Newspapers Ltd (No 2) [2002] 1 All ER 652 14

Dow Jones & Co Inc v Glutnick [2002] CLR 575 14

Sellman v Slater 14

Third Party Publications (publication of omission or adoption) 15

Murray v Wishart [2014] NZCA 461 15

Internet publication 16

Reference to plaintiff 18

Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL) 18

Determining the meaning 19

Fair minded reader 19

Stocker v Stocker [2019] 3 All ER 647 (UKSC) 21

Lewis v Daily Telegraph Ltd [1964] AC 234 (HL) 22

APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 (SCNZ) 23

Context 24

Sellman v Slater [2018] 2 NZLR 218 24

Stocker v Stocker [2019] 3 All ER 647 (UKSC) 25

John v Guardian Newspapers and Media Ltd [2008] EWHC 3066 25

Bane and Antidote 26

Charleston v News Group Newspapers Ltd [1995] 2 AC 65 26

Truth (NZ) Ltd v Bowles [1966] NZLR 303 (CA) 27

Morosi v BroadcastingStation 2 GB Ptd Ltd [1980] 2 NSWLR 27

McGee v Independent Newspapers Ltd [2006] NZAR 24 27

Pleading Meanings 29

“False” or “popular” innuendo – s 37(2) 30

‘True’ or ‘legal’ innuendo – s 37(3) 34

Defamatory Meaning 36

Berkoff v Burchill [1996] 4 All ER 1008 36

New Zealand Magazines Ltd v Hadlee (No 2) [2005] NZAR 621 38

Defences to Defamation 40

Innocent Dissemination 40

Emmens v Pottle (1885) 16 QBD 354 40

Truth (or justification) 42

Television New Zealand Ltd v Haines [2006] 2 NZLR 433 43

Honest Opinion 46

Based on known (true) facts 49

Expression of value judgement or comment on facts 50

Privileges 51

Absolute privilege 51

Qualified privilege 52

Loss of privilege 52

Self-defence privilege 53

Responsible Communication on Matter of Public Interest 55

Durie v Gardiner [2018] 3 NZLR 131 (CA) 55

Political Discussion 57

Neutral reporting 58

Torts to the Person

Defamation

Privacy – publication of a fact which is true. On the other hand, if the statement being published is not true you can use the tort of defamation.

• Privacy is concerned with the distress and humiliation from disclosure, or knowing someone is watching them

• Defamation is concerned with loss of reputation – someone says something which causes others to think less of the plaintiff

• If plaintiff is distressed but there is no loss of reputation, defamation cannot succeed.

• Until the 1600s, the traditional mechanism to deal with reputation was violent (duelling).

The law recognises in every man [and woman] a right to have the estimation in which he [or she] stands in the opinion of others unaffected by false statements to his [or her] discredit – Scott v Sampson (1882) 8 QBD 491 per Cave J

Remedies for a successful action in defamation have three purposes:

• Compensate for damage to reputation

• Vindicate the plaintiff’s good name

• Distress, hurt and humiliation are compensable but consequential to the first two.

Three factors in assessing the extent of damages:

• Seriousness of the defamation

• Extent of publication

• Conduct of the defendant

[Defamation is] the oddest’ of the torts… he [the plaintiff] can get damages (swingeing damages!) for a statement made to others without showing that the statement was untrue, without showing that the statement did him the slightest harm, and without showing that the defendant was in any way wrong to make it (much less that the defendant owed him any duty of any kind). – Weir, Tony Casebook on Tort. 8^th edition. London: Sweet & Maxwell, 1996 at 525

Background

Opai v Culpan [2017] NZAR 1142 (HC)

Defamation is a strict liability tort:

• Burden rests on the defendant to rebut presumption of falsity

• No requirement for intention to defame – the only intention required is to publish

• Once a defamatory statement is published, the onus shifts to the defendant to prove an available defence – truth, honest opinion, qualified privilege

[61] There has been increasing recognition that the right to reputation must be carefully balanced against the right to freedom of expression.

• Law is mediating between these values

• Section 14 NZBORA protects freedom of expression

• How does the law accommodate defamation within the Act? Any limits on freedom of expression must be demonstrably justified in a free and democratic society.

The plaintiff should not be allowed to bring cases where damages are trivial:

[62] “allowing a trivial or pointless defamation case to continue could constitute an impermissible interference with freedom of expression.

• Jameel – highly defamatory article claiming the plaintiff was funding Al-Queda. Only 5 people in the UK had read the article. 3 were associated with the plaintiff, the other 2 could not remember the person’s name.

• English Human Rights Act 1998 – brought in the need to consider impacts on freedom of expression

• Preventing trivial defamation cases from proceeding through the court system enhances overall access to justice.

[63] “The Jameel principle recognises the important role the court can play in preventing its processes from being abused by the brining of defamation claims where the costs of the litigation are likely to be grossly disproportionate to any reputational harm suffered.”

• Opai endorses the Jameel principle – proportionality between court resources required to determine a claim and the interest at stake.

Sellman v Slater [2018] 2 NZLR 218

Lecture 9: (24/03/20)

Defendant applies to strike out the proceeding as an abuse of court process based on the Jameel principle – there was no substantial tort, disproportionate waste of resources to proceed.

• Plaintiff alleged they had been defamed in a series of blog posts by Slater and comments by other defendants

• Slater had said some disrespectful things about Sellman across 31 posts on the Whale Oil blog, with a large number of viewers on each post – no difficulty in establishing substantial harm

Palmer J examined the question of whether substantial...

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