More on suppression and the internet in New Zealand

Ursula Cheer brings the reader up-to-date to her article on the decision of the judge in New Zealand Police v KOr

Suppression and the Internet: The ‘cyber memory’ case - a New Zealand response

Ursula Cheer comments on a non-binding decision in which Judge Harvey made a partial non-publication order permitting contemporaneous reporting in newspapers and on television and radio, put prohibiting accounts on the internet

International Update New Zealand media law update

This update of New Zealand media law follows a short hiatus and presents highlights from the last few years. The update will be published in two parts, this first part dealing with developments in defamation, privacy, and breach of confidence. The second part will deal with hate speech and online harms, copyright, court reporting, contempt, and media regulation of native and embedded advertising. In defamation, New Zealand courts have accepted a form of harm threshold but rejected changes to the multiple publication rule. Doubt has been cast on the principle that death ends most claims in defamation, following recognition in a number of cases that Māori tikanga is part of New Zealand law. Publication by hyperlink that attracts liability has been somewhat clarified, and defence against attack continues to be used by defendants with mixed success. Context has been emphasised in determining meanings and various aspects of remedies have attracted judicial comment. In privacy, a media exemption under the Privacy Act has been the subject of privacy complaint proceedings and later statutory amendment. The publicity requirement in our publication tort has been relaxed and remedies have been the subject of obiter comment. An overlap between privacy and reputational harm has been recognised by the High Court and causation issues have defeated a claim by a prominent ex-MP. Courts have indicated interest in addressing whether our publication tort should continue to have a second limb requiring highly offensive publication, and lawyers are using this argument strategically. Two breach of confidence cases involving wrongful disclosure of information resulted in injunctions issued to prevent publication by media as third party recipients

International Update: New Zealand media law update

This update reports further on developments in New Zealand media law in the last few years, and follows on from the first part that dealt with defamation, privacy and breach of confidence. New Zealand’s hate speech legislation has been the subject of ongoing review following an appalling terrorism incident involving mass murder, and a general media regulatory review is being carried out contemporaneously focussed on online harms. A copyright case was largely a success for media relying on a fair dealing defence. Court reporting cases continue to proceed from a basic open justice principle, but this will be departed from in particular to protect young offenders from social media attack. A number of cases have developed the law relating to protection of journalistic sources, and common law contempt of court has been replaced by a statutory model that attempts to provide more clarity, in particular about sub judice contempt. Media continue to seek access to court records and courts appear to be taking a more nuanced and sympathetic approach in granting access. The New Zealand Media Council has expressed strong views about native and embedded advertising masquerading as news and indicated it is prepared to consider complaints made against such content

Reality and Myth: The New Zealand Media and the Chilling Effect of Defamation Law

In 2001, I began the field work in an empirical study of the laws of defamation in New Zealand. This study involved a comprehensive mail-out survey of the New Zealand media, and an adapted survey of defamation lawyers, which were designed to discover how the laws of defamation affected both groups, and what the respondents thought about those laws. The survey was augmented by an extensive search of defamation court files in the most important New Zealand High Court registries. The question behind the survey was essentially whether New Zealand’s defamation laws have a chilling effect on the media, to the extent that stories which should be told do not see the light of day. In this thesis, I contextualise and report on the results of the survey. I first describe and analyse the sources and trends in current defamation law, the other forms of regulation of the media in New Zealand, and the patterns of media ownership. I go on to utilise background data from the survey to present a character and business profile of the media who responded to the survey and find the data confirms the representative nature of those respondents. I then complete contextualisation of the survey by analysing the nature of the chilling effect doctrine itself, a canon which began as a predictive theory importing sociological concepts into legal analysis, but which is now a doctrine applied somewhat inconsistently, but with substantive effects, by the courts. In the following chapters I present the results of the media survey, the court file search and the survey of defamation lawyers, both in narrative and graph or tabular form. My tentative initial finding, that New Zealand’s defamation laws do not have an excessive chilling effect on our media, although they do have some, is progressively confirmed, with each set of data appearing to mirror and corroborate that which went before. In the final chapters, I take this somewhat surprising finding and augment it by theorising about future developments in defamation law. I suggest that increased constitutionalisation of this area of private law, in the form of full incorporation of a Bill of Rights methodology, is both desirable and necessary to protect against any chilling effects, such as they are. I conclude by posing a question about a possible joint future for defamation and privacy claims