Dialogue: Defamation rort flies in face of freedom

By GORDON McLAUCHLAN

New Zealanders should, from the start, have conducted an unremitting campaign not just to alter the proposed criminal libel provisions in the Electoral Amendment Bill (No 2) but to have them abolished.

Not to do so means that we accept we are not as mature a democracy as the United States, Sweden, Denmark and other grown-up Western nations where criminal libel is regarded with the angry opprobrium reserved for any laws that seek to curtail freedom of expression.

I angrily resent such an implication.

I have travelled to International PEN congresses and heard many writers tell their scary stories about the various ways in which even some democratic countries (Turkey, for example) use this sort of legislation to silence or jail writers.

Before you allow politicians to scoff that they aren't the sort of people to misuse such a law, remember 1951 and thus remind yourself that freedom is a fragile thing here as well as everywhere else.

That's why the United Nations has this year urged governments to repeal criminal defamation laws in favour of civil laws, and to release the grip of repressive defamation laws.

Article 19 of the UN International Covenant of Civil and Political Rights requires member states to promote and protect freedom of speech because the free flow of information and ideas is vital to the democratic process.

In his report this year the UN special rapporteur recommended:

(a) Repealing criminal defamation laws in favour of civil laws.

(b) Limiting sanctions for defamation to ensure they do not exert a chilling effect on freedom of opinion and expression and the right to information.

(c) Prohibiting government bodies and public authorities from bringing defamation suits with the explicit purpose of preventing criticism of the government or even of maintaining public order.

(d) Ensuring that defamation laws reflect the importance of open debate on matters of public interest and the principle that public figures are required to tolerate a greater degree of criticism than private citizens (my emphasis).

(e) Qualifying only patently unreasonable opinions as defamatory.

(f) Stipulating that defendants are not required to prove the truth of opinions or value statements.

(g) Ensuring that the onus of proof is on those claiming to have been defamed and not on the defendant(s).

(h) Providing a range of remedies in addition to damages awards, for example, apology and/or correction.

New Zealand would do well to adopt some of those recommendations as well.

Attorney-General though she may be, Margaret Wilson is a novice, one who hasn't had to slog her way up from electoral office to electoral office, or even from the back benches to the front, but has slid obliquely, as it were, into the corridors of power from the leafy glades of academia.

Teachers are more prone than most to megalomania for obvious reasons; so Wilson may have been more receptive than others to a frisson from above that convinced her of the holiness of power (James I had the same problem); and thus came this legislative proposal because there are very few protections for those seeking public office.

No similar epiphany, though, made her devise an amendment to protect the electorate from the gross hyperbole, the lies and the false promises by campaigning politicians, for which there is no legal redress whatever. Funny that.

That frame of mind, that assumption that MPs and aspiring MPs need special protection above other citizens, has in it the seeds of danger for the electorate and defeat for its proponents.

I would like to remind Wilson, Helen Clark et al that Labour has held power for just 14 of the past 52 years. Each of the three Administrations rode into power on the high expectations of the liberal community of a shuffle to the left of centre.

And each Administration imploded, not because of inefficiencies but because of moral and intellectual aloofness. From Nordmeyer through Bill Rowling and Roger Douglas-David Lange, they looked down on the unwashed, the insufficiently waged, and the inadequately fed and housed, as well as on the well-heeled and influential, and patted them all on the head with a "There, there, we know best".

Two of these three Governments failed within one term, and in 1987 they survived into a second only because the false boom engendered by "We know best" policies didn't totally collapse until just after the election.

So it's not just that insidious criminal libel attempt itself, it's the cast of mind it reveals. A long-time political lobbyist friend of mine a couple of months ago insisted that the next election was still loseable. I scoffed at him. I'm now glad there's no money involved.

Also, let's reflect that the Minister of Foreign Affairs, Phil Goff, has been soliciting support for his ill-advised Terrorism (Bombings and Financing) Bill on the basis that we have an obligation to the UN. We may now see from his attitude to the criminal libel issue how selective is his allegiance to UN principles.