Dialogue: More room for freedom of speech

By ROSEMARY TOBIN*

The saga involving former Prime Minister David Lange, publisher Australian Consolidated Press and political commentator Joe Atkinson came to an end last week after five years of bitter and expensive litigation.

The case went to the High Court, the Court of Appeal, the Privy Council, back to the Court of Appeal and then to the High Court again before Mr Lange abandoned the action. The only surprise was that after the High Court decision it took so long for the dispute to end.

It all began with an article, accompanied by a cartoon, in North & South magazine critical of the performance and leadership of Mr Lange during his time as Prime Minister. Mr Lange sued in defamation. Not surprisingly, ACP was determined to defend the action.

The publisher saw political discussion in the context of a democracy such as ours as an important right. A defamation action can be used to "chill" this right by forcing the media to think twice before they publish articles which might attract the action.

In defending the action, ACP argued that it had a duty to tell its readers about the performance of their politicians, and the readers had a corresponding interest as members of a democracy in receiving that information. In legal terms, ACP claimed it was protected by qualified privilege.

Occasions of qualified privilege are based on the importance of public interest in certain cases in allowing people to speak freely, without fear of defamation proceedings, unless they misuse the privilege. On such occasions, the public interest in allowing people to speak outweighs the protection of individual reputations.

In the High Court, Justice Elias recognised both the importance of freedom of expression in a democracy and the chilling effect that defamation law has on freedom of speech.

She confirmed that the defence of qualified privilege was available to the publisher and that all members of the public had an interest in the development and encouragement of political speech. She also recognised that effective dissemination of information and ideas depended greatly on the news media.

The Court of Appeal agreed with her. It considered that in a democracy such as ours we all have an interest in respect of those statements that concern the functioning of representative and responsible government. This extended to matters that directly affected the capacity of those elected to office.

Mr Lange's next step was the Privy Council, still the ultimate appellate court for New Zealand. And here there is an interesting twist to the tale.

At the same time as the New Zealand courts had been hearing argument in the Lange case, the English courts had been hearing a similar argument involving a former Irish politician. England's highest court, the House of Lords, ultimately rejected the defence of qualified privilege for political discussion.

The timing of the decision was unfortunate. It came at the same time as the Privy Council delivered the Lange decision.

The Privy Council could have upheld the appeal, in which case Mr Lange would have won and freedom of speech would have been the loser, or it could have confirmed the decision of our Court of Appeal. In a surprising move it did neither. Instead, it returned the case for reconsideration in light of the Irish politician's case.

In doing so, it abdicated its responsibility as an appellate court and may well have sounded the death knell of Privy Council appeals from New Zealand.

It came as no surprise that our Court of Appeal saw no reason to resile from its previous comprehensive decision, although it did modify some of what had been said.

This means that the attributes and qualities of those who govern, to the extent that these affect their capacity to do so, is a proper subject for political statements published generally, even if the commentator does not get all his facts right.

The privilege is not limited to those now in Parliament, but extends to comment upon former and future MPs. The media has a duty to publish such political statements and the public has an interest in receiving the statements.

This does not mean that a political commentator can say anything he likes about a politician. Not only must the reciprocal duty and interest be present but the privilege must not be misused. The defence is lost if the commentator acts with ill-will or has some underlying, improper motive in publishing the information.

But does the Lange decision go far enough? It does not, but the potential to expand it is there. It was confined to those elected or seeking election to Parliament, but the rationale for the decision extends much further.

Logically, it extends to those who are elected to local government and other publicly elected bodies such as school boards of trustees.

Political discussion could also encompass leaders of the business community, including the chief executives of large public companies. There would seem to be a proper public interest in their actions and qualities to the extent these might affect their capacity to meet their public responsibilities.

Obviously, the media are an effective means of communicating this information to the public generally.

But the most recent decision from the Court of Appeal suggests that it is wary of the potential extent of the political discussion privilege. While it left for another day the question of political discussion in the context of local government, it indicated that it did not extend to the paid servants of a local body.

Nonetheless, the result of the Lange case was a victory for freedom of speech, particularly political speech. It was also a victory for the media, but it came at a cost.

Indications are that Mr Lange spent at least $100,000, while ACP has indicated its costs were much higher. Nothing could more effectively demonstrate the chilling effect that a defamation action has on freedom of expression.

* Rosemary Tobin is a senior lecturer in law at the University of Auckland.