The development of the common law defences of fair comment and qualified privilege to a defamation action with particular reference to New Zealand

Abstract

This thesis examines two important common law defences to the defamation action: fair comment, now known as honest opinion in New Zealand, and qualified privilege. It does not purport to be an exhaustive study of the law of defamation. The thesis traces the development of the two defences over the last two centuries, and the discernable shift in the balance the law of defamation achieves between freedom of expression and reputation towards freedom of expression and away from the protection of private reputation as New Zealand became a mature democracy. The fair comment defences applies to matters of defamatory communications of opinion. The change of nomenclature to honest opinion more accurately reflects the inherent nature of the defence. From the inception of the defence if the subject matter of a communication was in the form of opinion, honestly held, it could be widely disseminated, provided the topic was of public interest. The defence began with literary criticisms, but then expanded to encompass comment on public figures, particularly political figures insofar as the comment concerned their public life. It is argued that the suggestion which has recently been made by the courts that the subject matter of the opinion need no longer be on a matter of public interest is both misguided and wrong. The qualified privilege defence, based on reciprocity of duty/interest in the occasion of communication, concerns the publication of false and defamatory matters of fact. For this reason the courts were traditionally reluctant to permit the defence when the communication received wide publication. Towards the end of the 20th century, however, this changed with the greater recognition accorded freedom expression in a mature democracy. Courts in England, Australia and New Zealand acknowledged that all members of the public had an interest in political discussion, particularly as it related to political figures, and that the media had a corresponding duty or interest in disseminating such information. The courts recognised that this had the potential to leave those who sought public office with little recourse when their reputation was attack in the media. Each jurisdiction adopted a different solution to this problem. I argue that the New Zealand Court of Appeal's solution has left the law in an unsatisfactory state and requires statutory intervention by the legislature.