Opinion: John Key, Internet-Mana and TVNZ: Did Breakfast serve up a defamation claim?

by NZ Lawyer15 Aug 2014
Election 2014 continues to heat up, with Internet Party leader Laila Harre and the Prime Minister this week continuing a stoush that has entangled the state broadcaster.

It all began last Wednesday, when Key, speaking on Radio Live, fired a shot at Harre by describing Internet founder/funder Kim Dotcom as her “sugar daddy”.  Harre denounced the remark as “sexist and offensive, borderline defamatory”, though Key suggested it was only a reference to Dotcom’s funding. 

On Thursday, an Internet-Mana campaign video – posted on Youtube the previous Friday – was saturated through the media.  It showed Dotcom onstage at an Internet-Mana fundraiser in Christchurch egging on “F*ck John Key” chants emanating from the inebriated student crowd.

When asked to comment, Key said he was “not going to really dignify it with, you know, much of a view on it”.

On Monday this week, Key appeared on TVNZ’s Breakfast, during which presenter Rawdon Christie, after referring to “negative hate politics … off the back of the chant at the Internet do,” showed Key a newly surfaced video in which a young crowd burned him in effigy.

A tight-faced Key immediately linked the effigy video to Dotcom, and went on to state that Internet-Mana had put together and promoted both videos.

Key later backtracked on Internet-Mana’s involvement with the effigy video, though this wasn’t enough for Harre, who, appearing on Tuesday’s Breakfast, called Key a liar.  Harre also slammed TVNZ for providing Key a platform to cast “slurs” on Internet-Mana.  For its part, TVNZ claimed it had “clarified” that the effigy video had not emanated from Internet-Mana, though it has steadfastly refused to apologise, insisting Key linked the two videos.

Does it matter who linked the videos?
Anyone who publishes a defamation is liable, so it makes no difference.  But as to the link between the videos, the explanations given bug me.  Key has claimed there was a “logical” link between the videos, in part, because people chanted “exactly the same things” – i.e. “F*ck John Key”.  This doesn’t wash, since no-one was chanting in the excerpt shown on Breakfast (or at least the Breakfast clip on TVNZ’s website).

The more likely explanation is that Christie led Key down the wrong path – probably unintentionally – given Key (purportedly) hadn’t seen the video before, and Christie’s preceding references to the first video.

Could Internet-Mana sue for defamation?
Even assuming the effigy-video comments were prima facie defamatory, it is extremely unlikely a political party could sue for defamation. New Zealand law hasn’t crystallised on point, but England’s rule which since 1998 has prevented political parties from suing for defamation, could apply. But even if it didn’t, Internet-Mana would have to argue it is a “body corporate” for the purposes of the Defamation Act – not an easy task – and even after that, it would have to prove actual or likely pecuniary loss.  (As an aside, England’s rule wouldn’t prevent political parties from being sued, which occurred in 1975 when a disaffected Social Credit member sued his former party for defamation. He lost.)

Could Harre or Key sue the other?
This is also unlikely, given the Lange privilege that overshadows political discussion – particularly during an election campaign.  This brand of qualified privilege, which was established in 2000 by the Court of Appeal, protects from defamation suits defamatory statements about former, current or aspiring parliamentarians.

The privilege can be defeated only if the plaintiff proves the defendant, in making the statement, was predominantly motivated by ill-will towards them, or took improper advantage of the occasion of publication. A reckless, cavalier approach to the truth will suffice.

In any event, Harre would have a claim only if she could prove Key’s criticism of Dotcom was understood by viewers as also casting aspersions on her.

As for Harre’s comment – calling Key a liar – this would likely be protected also under the defence-against-attack limb of qualified privilege, which allows a person to make a proportional response to an attack on their reputation.  Key’s “sugar daddy” comment, tied in with his swipe at Internet-Mana – assuming it calumniated Harre as well – probably evens out Harre’s “liar” comment.

Could TVNZ be sued?
In terms of defamation liability, TVNZ would also benefit from Lange qualified privilege.  On the other hand, Harre neatly set up an allegation of recklessness by TVNZ – which, if proved, could defeat Lange privilege – by alleging that TVNZ knew from its research, or should have known, that Internet-Mana wasn’t associated with the effigy video.

In all likelihood, the situation probably doesn’t have the legs to meet Colin Craig and Russel Norman at the High Court (not to suggest that case has much merit).  If anything, a Broadcasting Standards Authority complaint may be as far as it goes.

Ali Romanos is a Wellington media-law barrister who specialises in defamation. He can be contacted at ali@aliromanos.com.