Opinion: Colin Craig's defamation suit “bound to meet scorn”?

by 26 Feb 2014
Conservative Party leader Colin Craig’s latest tilt at a defamation claim – this time against his Green Party counterpart, Russel Norman – has revived the tension between acerbic political dialogue and the right of politicians, as individuals, to protect their reputation. However, it seems Craig is at odds with the New Zealand purview of political speech, given the near-universal derision of his claim.

Craig and Norman are not the first politicians to tango in defamation suits. Since the 1970s, such politicians have included the likes of Muldoon, Jones (Bob), Templeton, Douglas (Roger), Lange, Peters (Winston), Banks, Bolger, Prebble, Laws, Shadbolt, Jennings, Clark (Helen), Collins, Mallard, Little, Mitchell and Key.

Yet New Zealanders have a rich history defending political speech – whether it emanates from the media or warring politicians. On 19 May 1911, a Wellington jury rejected a libel claim brought by the then Leader of the Opposition (and later Prime Minister), William Massey, against The New Zealand Times. The newspaper had published a cartoon which Massey argued implied he was a liar. The jury, though, found that it “was a political cartoon pure and simple and was not libellous”, a verdict upheld by the Privy Council.

New Zealand’s real fortification of political speech, though, came nearly a century later, when the Court of Appeal in Lange v Atkinson – assessing the claim of another former Prime Minister – extended qualified privilege to cover a novel category: “political discussion”.  

Quite prudently, the Court of Appeal in Lange extended the privilege to cover speech directed not only at incumbent politicians, but also those formerly of or aspiring to reach such office. On the other hand, it is possible courts since Lange have missed the opportunity to extend the privilege beyond Parliament’s doors. Indeed, it is difficult to rationalise why, in a democracy, honestly held views about any elected official are subordinate to those concerning national politicians.
In any case, defamation restrictions still remain intact. A politician bringing a defamation claim can succeed if, for one, he or she proves the defendant, in publishing the matter the subject of the claim, was “predominantly motivated by ill-will towards the plaintiff”. In practice, the “predominantly aspect makes this threshold difficult to meet.
A plaintiff can also succeed if he or she proves the defendant “otherwise took improper advantage of the occasion of publication”. This latter test has been held to amount to reckless publication – that is, the privilege will be lost “if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement”.
It is interesting to consider also, albeit in rather broad strokes, how New Zealand’s protection of political speech stacks up internationally. Australia confers qualified privilege in respect of government and political matters, provided they are of public interest (read: public concern), and the publisher acts reasonably, while England and Canada confer more generic public-interest privileges. New Zealand, then, is more explicit regarding political speech.

In the US, a defamation-defendant-friendly jurisdiction, wide protection – driven by the First Amendment – is afforded not only for speech directed against politicians, but “public figures” generally. It is reasoned such people are better able to court publicity, and so can more easily respond to defamatory attacks. Protection will be lost only where a plaintiff proves “actual malice” – the defendant’s knowledge that the publication was false or reckless disregard of its falsity.

In Germany, a public-interest defence exists so long as a publication was crafted with requisite “journalistic care”. In Italy, further restrictions on political speech prevail: protection exists only where a publication has “social utility”, is written in a “sober” form, and is ultimately true. In Brazil, a “truth of the matter” requirement makes for a more restrictive framework than New Zealand’s. Meanwhile, at the more draconian end, in Russia there are no added protections for politically directed or public-interest dialogue, while in China, political-speech freedoms are rather non-existent. For instance, publications that promote an independent Taiwan, or impugn the integrity and political wisdom of Chairman Mao, are expressly criminalised.

But as to why political speech is worth affording privilege, the best articulation is probably that of Lord Diplock. In Horrocks v Lowe, a 1970s English case which centred on a speech at a town meeting, His Lordship put it thusly:

“The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism.” 

From an historical and international perspective, New Zealand prides itself on protecting political speech. So while in politics there may be a hazy line between “playing the ball” and “playing the man”, New Zealanders, by their core, are bound to view any claim like Craig’s as simply inimical to democracy; a sin against free speech. In this light, it is understandable why his claim was bound to meet scorn.

Ali Romanos is a media-law barrister based in Wellington. 



  • by Tony 7/03/2014 3:32:11 p.m.

    I believe you have missed the point of Craig's actions. The, according to him, labels Norman put on Craig are specifically designed to shut down debate, and by extension, democracy. "Racist", "homophobic", "islamophobic" etc, all words people are terrified of being labelled with in this day and age. Therefore if you are prepared to call someone such words, you should damn well be able to back them up with facts, especially as these labels can be career ending. People are becoming tired of having their opinions silenced with these modern platitudes. It's actually Craig who is on the side of democracy here, not thr "ex" revolutionary communist, Norman.

  • by Ali Romanos 19/03/2014 12:24:03 p.m.

    Hi Tony,

    Thanks for your comment.

    Interesting that you're staunchly opposed to name-calling, but then engage in the same...

    I think calling Norman a "revolutionary communist" is perhaps a little hyperbolic - would you really put him in the same camp as Lenin, Trotsky et al?

    Of course, given your strong views of Norman, your political leanings have been laid rather squarely on the table. Unsurprising, then, that you subscribe to Craig's mantra of "improving political dialogue"...

    Do you disagree with Lord Diplock's statement?
    That is, do you disagree that there might be a section of society who agree with Norman, and that it thus Norman's duty, as a political representative, to broadcast that view?

    Are you equally up-in-arms when Green politicians are labelled "insane" or "loony"? Or does your defence of righteous political dialogue only concern that directed at conservative politicians?

    Personally, I think political speech is rightly accorded greater latitude independent of whom it is directed at...