DURIE & ANOR v GARDINER & ANOR [2018] NZCA 278

DURIE & ANOR v GARDINER & ANOR [2018] NZCA 278 [31 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA176/2017[2018] NZCA 278BETWEEN EDWARD TAIHAKUREI DURIEFirst AppellantDONNA MARIE TAI TOKERAU HALLSecond AppellantAND HETA GARDINERFirst RespondentTHE MĀORI TELEVISION SERVICESecond RespondentHearing: 26 October 2017 (further submissions received 28 March 2018)Court: French, Winkelmann and Brown JJCounsel: F E Geiringer, S J Price and G M Davidson for AppellantsW Akel and J W S Baigent for RespondentsJudgment: 31 July 2018 at 2 pmJUDGMENT OF THE COURTA The respondents' application to adduce further evidence is declined.B The appeal is allowed in part. References to "qualified privilege","Lange v Atkinson", and "reportage" are struck out from the respondents'qualified privilege/public interest defence. The respondents' defence ofpublic interest in respect of the first website story before the video clip wasposted is also struck out. The appeal is otherwise dismissed.C There is no award of costs.____________________________________________________________________REASONSFrench and Winkelmann JJ [1]Brown J [104]FRENCH AND WINKELMANN JJ(Given by French J)Table of ContentsIntroduction [1]Background [4]The pleadings [25]The strike-out application [30]Is there a general public interest defence to defamation claims in New Zealandand if so, what is its scope? [35]Legal background [36]Our analysis [53]Reportage [69]Other aspects of the new defence [82]Application to adduce further evidence [88]Should the defence be struck out on the facts? [91]Outcome [100]Introduction[1] Is there a public interest defence in New Zealand to defamation claims arisingfrom mass publications? And if so, what is its scope?[2] Those are the key questions posed by this appeal. They arise from aninterlocutory decision of Mallon J in the High Court, declining to strike out a defencepleaded by a television broadcaster in proceedings brought by the appellants.1[3] As the Judge noted, the defence pleaded relies on developments inthe United Kingdom and Canada which to date have not yet been adopted by appellate1 Durie v Gardiner [2017] NZHC 377, [2017] 3 NZLR 72.authority in this country.2 The current appeal thus affords this Court its firstopportunity to consider these developments, and how they might affect the landmarkdecisions of Lange v Atkinson.3Background[4] The appellants are prominent New Zealanders. Sir Edward Durie is a retiredHigh Court Judge and at all relevant times co-chair of the New ZealandMāori Council.4 Ms Donna Hall is a lawyer with a high profile, specialising in Māorilegal issues. She is married to Sir Edward.[5] Sir Edward and Ms Hall issued defamation proceedings in the High Courtagainst the Māori Television Service (Māori TV) and against one of its senior newsreporters, Mr Heta Gardiner. The proceedings relate to a story broadcast on Māori TVand put up on its website.[6] In total there were four publications:(a) A television broadcast as part of the Te Kāea news programme on3 August 2015 between 5.30 and 6 pm (the Te Kāea broadcast).(b) A website story put up on 3 August 2015 at 6.01 pm (the first websitestory).2 At [36]. See in the High Court: Osmose New Zealand v Wakeling [2007] 1 NZLR 841 (HC);Peters v Television New Zealand Ltd HC Auckland CIV-2004-404-3311, 1 October 2009; Lee vThe New Korea Herald Ltd HC Auckland CIV-2008-404-5072, 9 November 2010; Dooley v Smith[2012] NZHC 529; Cabral v The Beacon Printing & Publishing Co Ltd [2013] NZHC 2684; andKaram v Parker [2014] NZHC 737. Three decisions delivered since Mallon J's decision in thiscase are: Craig v Slater [2017] NZHC 735, [2017] NZAR 637; Hagaman v Little [2017] NZHC813, [2017] 3 NZLR 413; and Low Volume Vehicle Technical Assoc Inc v Johnson [2017] NZHC2846.3 Lange v Atkinson [1998] 3 NZLR 424 (CA) [Lange (No 1)]; and Lange v Atkinson [2000] 3 NZLR385 (CA) [Lange (No 2)].4 As explained more fully by Mallon J, the New Zealand Māori Council is a statutory body with"functions including promoting, encouraging and assisting Māori to advance their physical,economic, industrial, educational, social, moral and spiritual well-being. It has been involved insignificant litigation on behalf of Māori in accordance with that function." The Act thatestablished the New Zealand Māori Council provides for District Māori Councils, which havemembers elected every three years, and those District Māori Councils elect the New ZealandMāori Council members. See Durie, above n 1, at [4]–[9].(c) An amended website story put up on 6 August 2015 (the amendedwebsite story).(d) A television broadcast on a weekly current affairs programmeNative Affairs on 31 August 2015 (the Native Affairs programme).[7] In order to understand the issues, it is necessary to set out the sequence ofevents leading to the publications in some detail. The following account, which theparties agree is accurate, borrows extensively from Mallon J's judgment.[8] On the morning of 3 August 2015, the head of Māori TV's news and currentaffairs Ms Maramena Roderick was contacted by a confidential source. The sourcewhom Ms Roderick regarded as reliable informed her of conflict withinthe Māori Council. At Ms Roderick's request, the source forwarded her a copy of anemail as well as a document purporting to be minutes of a Māori Council executivemeeting held on 28 July 2015.[9] The email was dated 31 July 2015 and had been sent to Ms Hall by Mr MaanuPaul the other co-chair of the Māori Council. The email advised Ms Hall that her lawfirm had been dismissed as the Māori Council's legal representative in proceedingsregarding the Trans-Pacific Partnership Agreement and that she was to hand over herfile to another lawyer.[10] The minutes recorded resolutions and statements made at the 28 July meetingwhich pre-dated the email. The minutes included statements that:(a) Ms Hall had not followed the Māori Council's instructions. She shouldbe dismissed and a complaint made to the Law Society if evidence werereceived that her firm was undermining the Council's mana.(b) According to the Tāmaki Makaurau District Māori Council, Sir Edwardhad a conflict of interest when briefing the Council's legal business.He had instructed Ms Hall to apply to put him back on the board ofthe Crown Forestry Rental Trust as the Māori Council's representativewithout Mr Paul's knowledge or the consent of the executive.Processes to mitigate the risk of conflict had not been put in place anda legal services roopu should be formed to instruct and manage all legalclaims until the Law Society provided a clear directive on the conflictissue.(c) The Te Tai Tokerau District Māori Council had complained Ms Hallhad set up two new Māori committees in that district withoutconsultation. If she had done this at the instance of Sir Edward, thenhe needed to be held to account and if not Ms Hall was breachingMāori Council tikanga. The executive resolved that the legal servicesroopu undertake an investigation and report back.(d) The Māori Council's legal team was the only legal team not ready toproceed with an urgent hearing relating to a claim before theWaitangi Tribunal.(e) Ms Hall was running a campaign that was damaging the TāmakiMakaurau District Māori Council's mana and she and Sir Edward werewhipping up a level of hatred not witnessed before.[11] Ms Roderick regarded the matters in the email and minutes as of high publicinterest and concern to Māori, having regard to the Māori Council's leadership role inMāoridom and its success in achieving significant change and development on behalfof Māori over many years. She considered the documents indicated a seriousbreakdown of relationships within the Māori Council.[12] Ms Roderick then assigned the story to Mr Gardiner with a view to it beingbroadcast that evening between 5.30 pm and 6 pm on Māori TV's flagship newsprogramme Te Kāea.[13] Mr Gardiner made contact with Ms Hall at approximately 1.45 pm.She claimed Mr Paul had no authority to dismiss her. When asked by Mr Gardiner ifshe would like to speak on camera to give her perspective, she said she was busy until4 pm and to call her then.[14] Mr Gardiner then arranged to interview Mr Paul by telephone at 2.30 pm.Mr Paul confirmed the minutes were an accurate record of the meeting. After theinterview, Mr Gardiner texted Ms Hall confirming he had now interviewed Mr Pauland wanting to make arrangements to interview her at 4 pm. She was not howeverfree of her commitments and could not be contacted until just after 5 pm.[15] Ms Hall emailed Mr Gardiner at 5.15 pm. She advised there were electionspending for the Māori Council executive and until the election was held, the currentexecutive was only supposed to be acting in a caretaker role. The election was hotlycontested and causing some people to make regrettable statements. The meetingrecorded in the minutes was not a properly constituted meeting of the executive.There were documents that easily showed the defamatory allegations in the minuteswere false, but it was not possible in the time available to provide a detailed response.There would be a Māori Council meeting on 5 to 6 September at which Ms Hall wasconfident the allegations would be shown to be false and not endorsed bythe Māori Council. Māori TV should not publish the allegations in the minutesbecause it would be acting as the mouthpiece of people who were making deliberatelyhurtful and false allegations for their own political purposes.[16] Mr Gardiner conferred with his producers. It was too late to add Ms Hall'sstatement to the story which was about to go on air. It was agreed that Mr Gardinerwould instead do a live piece at the end of the story to explain that Ms Hall's statementhad just been received and to set out her statement.[17] The story was duly broadcast on Te Kāea on 3 August 2015 during the laterpart of the programme's 5.30 pm to 6 pm time slot. It was broadcast in Māori withEnglish subtitles. There were also visuals showing extracts from the minutes.An English transcript of the broadcast reads as follows:The NZ Māori Council (NZCM) has [dumped] their legal counsel, Donna Halland her firm, Woodward Law from their TPPA claim. Heta Gardiner has thisexclusive report.Only last month, the Māori Council was fighting to stop the TPPA. But it'sproblems from within that are corroding the council. Today we learnt thatthey've dumped their legal counsel.[Maanu Paul] It's come to our attention that Woodward Law wasn't listeningto our directives, so we removed them.Maanu Paul sent an email to Donna Hall last week advising that her firm,Woodward Law, was being dismissed as its TPPA counsel. Neither parties aredisclosing much about the fallout. But Te Kāea has also obtained a copy oflast week's council minutes, which outlines a severe breakdown in therelationship. The minutes record say:• That Woodward Law be dismissed as NZMC legal counsel for the TPPAClaim.• That if evidence is received that Woodward Law is undermining the manaof the NZMC, then a complaint to the NZ Law Society be prepared andfiled.• A clear breach of the directives given to Woodward Law.[Maanu Paul] We have the authority in these matters.The minutes also record allegations that there is a conflict of interest withDonna Hall and her husband Taihākurei Durie. The council'sTāmaki Makaurau branch claimed that:"Taihākurei as the husband of Donna Hall, the Principal of Woodward Lawhas put himself under risk of certain conflict of interest unless processesmitigating that risk were put in place. That did not happen. In other words,Taihākurei instructed his wife to file an application to put himself back on theCFRT Board without bringing the matter to the Executive. Had he done soand resiled from voting, the conflict could have been dealt with appropriately."It claims that in 2014 Woodward Law filed an application for Taihākurei to begiven a second term as a Māori Trustee on the Crown Forestry Rental Trust(CFRT) Board without the consent of the Māori Council. The minutes alsorecord Titewhai Harawira accusing Donna Hall of running a smear campaignduring the triennial elections and that:"Titewhai has served on this DMC for over 40 years and has never witnessedthe level of hatred being whipped up by Donna Hall and Eddie [Taihākurei]."So, is this the beginning of the end for this relationship?[Maanu Paul] When the NZ Council meets next, they will decide on suchmatters.The council has resolved to form a legal services subcommittee to investigatethe allegations and meet with Woodward Law.We cross now to our political reporter Heta Gardiner. Heta, what didDonna Hall have to say today?Rahia, I just spoke to Donna Hall and that is why she didn't feature in mystory today, her statement came too late. It's safe to say that Donna Hall islivid. In regard to the members mentioned in our report, she says, "These arenot truly statements from the Executive but are rather the personal statementsof some disgruntled Māori Council members. There is no privilege thatattaches to these statements." She goes on to say that at the meeting inSeptember she is confident that the allegations will be shown to be false.[18] The first website story was put up on Māori TV's website at 6.01 pm on3 August 2015. The original script from the Te Kāea broadcast was uploaded, butwithout the video clip containing the summary of Ms Hall's response. It had still tobe processed. The video clip became viewable about 7.41 pm. The online story wasin English only. It was identical to the Te Kāea broadcast with the exception of thefollowing:(a) reference in the second sentence of the broadcast to Mr Gardiner havingthis exclusive report was not included in the website story;(b) the website story did not include quotation marks around the followingwords:In other words, Taihākurei Durie instructed his wife to file anapplication to put himself back on the CFRT Board withoutbringing the matter to the Executive. Had he done so andresiled from voting, the conflict could have been dealt withappropriately.(c) the website story included the following additional words:Furthermore, the minutes reveal concerns from the council'sTai Tokerau branch that Donna Hall had set up Māoricommittees in their district without consulting them and that:" we need to establish who is instructing Woodward Law togo into other districts. If it is Taihākurei, then he needs to beheld to account. If it is Donna Hall is instructing herself, thisis another breach of the NZMC tikanga and processes."(d) the website story did not include the direct comments from Mr Paul;and(e) the website story did not include the cross to Mr Gardiner and hissummary of what Ms Hall had to say.[19] Later in the evening of 3 August 2015, Mr Gardiner offered Ms Hall anotheropportunity to be interviewed the next day to refute some of the accusations, but didnot receive a response. The next communication was in fact a letter dated5 August 2015 from a lawyer representing both Ms Hall and Sir Edward. The lettercontended the broadcast and website story were defamatory and, had Māori TVallowed a reasonable time, could easily have been refuted by documentation.The letter requested immediate removal of the website story together with a retractionand apology.[20] On 6 August 2015 Māori TV updated the website story. This was to includethe last part of the Te Kāea broadcast in which Ms Hall's response was discussed.It also included (minutes after initially going online) the quotation marks missing fromthe first website story.[21] On 5.42 pm on 7 August 2015, Māori TV removed the website story but didnot agree to the other demands in the lawyer's letter. Its position as conveyed toMs Hall and Sir Edward's lawyers was that further inquiries had indicated a verydifferent view to that advanced by Ms Hall and that Māori TV considered the storywas likely to develop. It therefore refused to agree not to re-publish the minutes.It again invited Ms Hall and Sir Edward to be interviewed.[22] Ms Roderick considered the issues required further coverage in order she saysto give viewers a better understanding of the dispute. This led to the Native Affairsbroadcast on 31 August 2015. Ms Hall and Sir Edward declined to be interviewed,but provided a statement denying the allegations and saying the resolutions passed atthe meeting were invalid and based on incorrect information. We interpolate here thatthe appellants do not sue Māori TV in respect of this broadcast although it does formpart of a claim for aggravated damages.[23] There were no further developments until a meeting of the Māori Council on16 April 2016 when Sir Edward was elected sole chairperson for a term of three years.This was reported by Māori TV on its Te Kāea programme. The report also appearedon Māori TV's website. The story included an on-camera interview with Sir Edward,and Mr Paul's response to the election result.[24] Other media reported on the election result. Earlier, four news outlets —Fairfax Media, Radio New Zealand, Television New Zealand and Waatea News — hadpublished stories on 3 or 4 August 2015 about the Māori Council dismissing Ms Halland (in varying degrees) her response.The pleadings[25] The statement of claim treats each of the first three publications (the Te Kāeabroadcast, the first website story and the amended website story) as separate causes ofaction.[26] It contends that each publication contained statements that in their natural andordinary meaning were defamatory of Ms Hall and Sir Edward. The defamatorymeanings are identified as follows. In relation to Sir Edward, that he:(a) Acted in a position of conflict of interest by instructing his wife to applyfor his reappointment to the Crown Forestry Rental Trust withoutnotifying the Māori Council or seeking its consent.(b) Acted unlawfully and unprofessionally by not obtaining theMāori Council's consent to his bid for reappointment.(c) Breached his responsibilities to the Māori Council by not obtaining itsconsent.(d) Acted dishonestly by not telling the Māori Council of his bid forreappointment(e) Placed his own interests and those of his wife over those of theMāori Council and Māori people.(f) Conducted himself so as to give rise to a reasonable cause to suspect heacted improperly and without Māori Council approval to set upcommittees in Tai Tokerau.(g) Was running an unjustified smear campaign in an unprecedentedmanner that involved whipping up hatred in relation to the elections.[27] In relation to Ms Hall, that she:(a) Conducted herself so as to justify being dismissed.(b) Failed to follow the Māori Council's instructions.(c) Breached her professional ethical obligations.(d) Acted unlawfully.(e) Acted in a position of conflict of interest in making an application onbehalf of the Māori Council for her husband to be reappointed to theCrown Forestry Rental Trust without notifying the Māori Council orobtaining its consent.(f) Acted unprofessionally and unlawfully by not obtaining that consent.(g) Breached Māori Council tikanga by setting up committees withoutconsulting the local council.(h) Conducted herself so as to give rise to a reasonable cause to believe shehad undermined the mana of the Māori Council in a manner thatbreaches Law Society obligations.(i) Conducted herself so as to give rise to a reasonable cause to believe shehad acted without instructions in setting up committees.(j) Was running an unjustified smear campaign in an unprecedentedmanner that involves whipping up hatred in relation to the elections.(k) Breached her responsibilities to the Māori Council.(l) Placed her own and her husband's interests over those of theMāori Council and Māori people.[28] The statement of claim seeks compensatory (including aggravated) damagesand punitive damages as well as a recommendation for publication of a correction.[29] The statement of defence contends the words do not bear the allegeddefamatory meanings. It also pleads other defences including the defence of honestopinion and a defence described as "Qualified Privilege/Public interest defence".This latter defence, which Māori TV told Mallon J is its primary defence, is pleadedin the following terms:Qualified Privilege/Public interest defenceTo the extent that the words complained of were published, thosepublications were protected by qualified privilege in that they were neutralreportage, and/or subject to the Lange v Atkinson privilege; or an extensionthereto; and/or were responsible journalism/communications on matters ofpublic interest; or protected by a sui generis public interest defence.The strike-out application[30] Sir Edward and Ms Hall applied to strike out the defence of honest opinion andthe qualified privilege/public interest defence on the grounds neither of those defencescould possibly succeed.[31] Much of the argument in the High Court focused on whether the qualifiedprivilege defence in the terms pleaded was as a matter of law available in this country.After an extensive review of the authorities, Mallon J concluded that it was,5 andfurther that it could not be said the defence would inevitably fail on the facts.6[32] Justice Mallon also refused to strike out the honest opinion defence.7The appellants have not appealed that part of her judgment and we therefore do notaddress honest opinion any further.5 Durie, above n 1, at [105].6 At [112]–[114].7 At [145].[33] We turn now to consider the issues on appeal. It was common ground thatMallon J's review of the case law, the facts of each case and the rulings in each casewas comprehensive and accurate.8 We therefore do not consider it necessary for us totraverse the authorities in the same detail, other than to provide a brief summary of therelevant legal background.[34] It should also be noted that in this Court unlike the High Court, the appellantswere prepared to concede that some form of public interest defence might now existin New Zealand. The focus of the argument was therefore more on the boundaries ofsuch a defence and its application to the facts.Is there a general public interest defence to defamation claims in New Zealandand if so, what is its scope?[35] For convenience we again set out the defence as pleaded by Māori TV.To the extent that the words complained of were published, thosepublications were protected by qualified privilege in that they were neutralreportage, and/or subject to the Lange v Atkinson privilege; or an extensionthereto; and/or were responsible journalism/communications on matters ofpublic interest; or protected by a sui generis public interest defence.Legal background[36] The classic definition of qualified privilege is that it arises where the maker ofthe impugned communication has "an interest or duty, legal, social, or moral, to makeit to the person to whom it is made, and the person to whom it is made has acorresponding interest or duty to receive it".9 Where the privilege arises, it protectsfalse and defamatory assertions of fact. It is qualified as opposed to absolute becausethe privilege may be lost if the plaintiff proves the maker of the statement tookimproper advantage of the occasion of publication or was predominantly motivated byill-will.108 The appellants disputed some of Mallon J's conclusions regarding what they say are the constraintsof reportage but ultimately these were not significant for the purposes of the appeal.9 Adam v Ward [1917] AC 309 (HL) at 334.10 Defamation Act 1992, s 19.[37] In the first Lange v Atkinson decision, this Court extended the scope of thedefence of qualified privilege as it had traditionally been understood by holding thatmass publications concerning Members of Parliament, or those wanting to be electedto Parliament, were capable of attracting the defence if the allegations related to theirfitness for office.11[38] This was new because previously the courts had taken a narrow view of thereciprocity of interest required as between communicator and recipient when it cameto generally published statements. With a few limited exceptions such as fair andaccurate reports of official statements, hearings and meetings, the courts hadconsistently refused to recognise either that news disseminators had a duty to publishmatters which were of public interest and importance, or that the general public had alegitimate interest in learning of such matters.12 In Lange however, this Court said astrict concept of reciprocity was not essential.13[39] This Court did however reaffirm the traditional view as to when the privilegewould be lost, declining to follow Australian authority and import a new requirementthat a media defendant must prove it had acted reasonably in publishing the story.14[40] In the second Lange v Atkinson decision,15 this Court reconsidered itsapproach16 in light of a later House of Lords decision Reynolds v Times NewspapersLtd which had taken a different view.17 This Court considered Reynolds wasdistinguishable in the New Zealand context and accordingly reaffirmed its earlierdecision.18 In distinguishing Reynolds, the Court relied on such matters as the moreresponsible media culture in New Zealand,19 the smaller population,20 and differences11 Lange (No 1), above n 3, at 467–468.12 See Truth (NZ) Ltd v Holloway [1960] NZLR 69 (CA); Dunford Publicity Studios Ltd v NewsMedia Ownership Ltd [1971] NZLR 961 (SC); and Brooks v Muldoon [1973] 1 NZLR 1 (SC).13 At 441.14 At 469–470. Compare Lange v Australian Broadcasting Corp (1997) 189 CLR 520.15 Lange (No 2), above n 3.16 At the direction of the Privy Council: Lange v Atkinson [2000] 1 NZLR 257 (PC).17 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (HL).18 Lange (No 2), above n 3, at [37]–[41].19 At [34].20 At [35].between the New Zealand Bill of Rights Act 1990 and the European Convention onHuman Rights.21[41] In Reynolds, the House of Lords had accepted the traditional approach wasinappropriately chilling free speech and that publication about matters of publicinterest to the world at large should be capable of attracting qualified privilege.However, it rejected the suggestion that a public interest privilege should be limited topolitical information, the publication of which would be privileged whatever thecircumstances. That approach was considered unsound in two respects. First, in theview of their Lordships there was no principled basis for distinguishing politicaldiscussion from discussion of other matters of serious public concern. And secondly,to ignore the circumstances of publication would mean inadequate protection forreputation.22[42] Instead, the House of Lords held that when the mass media makes a claim forprivilege, the question of whether the duty/interest test is satisfied (or put more simply,whether the public is entitled to know) must be answered on the facts of each case,taking into account, the following non-exhaustive factors:23(a) the seriousness of the allegation;(b) the nature of the information;(c) the source of the information;(d) the steps taken to verify the information;(e) the status of the information;(f) the urgency of the matter;21 At [28]–[30]; referring to the Convention for the Protection of Human Rights and FundamentalFreedoms ETS 5 (opened for signature 4 November 1950, entered into force 3 September 1953);scheduled to and given the force of law by the Human Rights Act 1998 (UK).22 Reynolds, above n 17, at 204.23 At 205.(g) whether comment was sought from the plaintiff;(h) whether the article contained the gist of the plaintiff's side of the story;(i) the tone of the article; and(j) the circumstances of the publication, including the timing.(The Reynolds factors).[43] Applying those criteria to the facts before them, the Law Lords held thatbecause the article in question had made serious allegations about the behaviour of theIrish Prime Minister in Parliament without mentioning his explanation, the allegationswere not ones the public was entitled to know and thus the publication was not onethat should in the public interest be protected by qualified privilege. The newspaper'sappeal was accordingly dismissed.24[44] As noted by Mallon J, the approach in Reynolds was both wider than Langeand narrower. It was wider because it was not confined to publications about Membersof Parliament or politics, but narrower because of its responsible journalism factors.25[45] We would add however that to a significant extent the latter point of distinctionbetween Reynolds and Lange may be more apparent than real. That is because in thesecond Lange decision, this Court explained that the assessment of whether theoccasion is privileged — that is, determining the existence of the required sharedinterest between publisher and public — was not just about the subject matter. It alsoincluded an inquiry into the circumstances or context of the publication, includingactual content. In other words, not every statement about a politician pertaining to theperformance of his or her role would be automatically privileged.26[46] All of the Reynolds factors are capable of being described as being part of thecircumstances and context of the publication and it is therefore arguable that if the24 At 206.25 Durie, above n 1, at [83].26 Lange (No 2), above n 3, at [13] and [21]–[23].Lange approach were applied to the facts of Reynolds, the result would be the same.Significantly, in a subsequent decision of this Court it was confirmed that theseriousness of the allegation — the first Reynolds factor — should be taken intoaccount in determining whether the Lange defence was available.27[47] Following Reynolds, the House of Lords and United Kingdom Supreme Courtemphasised in two further decisions — Jameel v Wall Street Journal Europe Sprl andFlood v Times Newspapers Ltd — that the Reynolds factors were not a series ofhurdles, but an illustrative guide as to what might constitute responsible journalismand that it was not for the courts to micromanage the editorial practices of mediaorganisations.28 It appears this was a response to criticism that although the defencewas meant to foster free expression and a free press, the Reynolds factors were beingapplied in such a way that made it almost impossible for the defence to ever succeed.29[48] Another important feature of the post-Reynolds English case law was theemergence of the concept of neutral reportage or reportage.30 It was held in severalcases that mass publication of the fact of an allegation made by someone else wascapable of attracting privilege without requiring the publisher to verify whether theallegations were well founded, provided the reporting of the allegation was withoutadoption of the allegation or embellishment. This represented a significant departurefrom the well-established rule that someone who repeats a defamatory allegation is noless liable than the person who originated it.31 (The repetition rule).27 Vickery v McLean [2006] NZAR 481 (CA) at [17]–[18].28 Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44, [2007] 1 AC 359; and Flood v TimesNewspapers Ltd [2012] UKSC 11, [2012] 2 AC 273.29 See Eric Barendt "Reynolds revived and replaced" (2017) 9 JML 1 at 1; Jason Bosland"Republication of Defamation under the Doctrine of Reportage: The Evolution of Common LawQualified Privilege in England and Wales" (2011) 31 Oxford Journal of Legal Studies 89 at 90–91; Kate Beattie "New Life for the Reynolds 'Public Interest Defence'? Jameel v Wall StreetJournal Europe" (2007) 1 EHRLR 81; Andrew Scott "The Same River Twice? Jameel v WallStreet Journal Europe" (2007) 12 Comms L 52; Jacob Rowbottom "Libel and the Public Interest"(2007) 66 CLJ 8; David Hooper "The Importance of the Jameel Case" (2007) 18 Ent LR 62; andAndrew T Kenyon "Lange and Reynolds Qualified Privilege: Australian and English DefamationLaw and Practice" (2004) 28 MULR 406 at 412 and 423–424.30 Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634 at [65] and [67]–[68]; Jameel, above n 28, at [62] per Lord Hoffmann; Roberts v Gable [2007] EWCA Civ 721,[2008] QB 502 at [53] and [60]; Charman v Orion Publishing Group Ltd [2007] EWCA Civ 972,[2008] 1 All ER 750 at [48]–[50]; and Flood, above n 28, at [77]. And see Godwin Busuttil"Reportage: A Not Entirely Neutral Report" (2009) Ent LR 44 at 45; and Bosland, above n 29.31 See Lewis v Daily Telegraph Ltd [1964] AC 234 (HL) at 260.[49] It will be recalled that "reportage" is part of Māori TV's pleaded defence.[50] There has since been legislative amendment in the United Kingdom with theenactment of s 4 of the Defamation Act 2013. Section 4 states:4 Publication on matter of public interest(1) It is a defence to an action for defamation for the defendant to showthat—(a) the statement complained of was, or formed part of, astatement on a matter of public interest; and(b) the defendant reasonably believed that publishing thestatement complained of was in the public interest.(2) Subject to subsections (3) and (4), in determining whether thedefendant has shown the matters mentioned in subsection (1),the court must have regard to all the circumstances of the case.(3) If the statement complained of was, or formed part of, an accurate andimpartial account of a dispute to which the claimant was a party,the court must in determining whether it was reasonable for thedefendant to believe that publishing the statement was in the publicinterest disregard any omission of the defendant to take steps to verifythe truth of the imputation conveyed by it.(4) In determining whether it was reasonable for the defendant to believethat publishing the statement complained of was in the public interest,the court must make such allowance for editorial judgement as itconsiders appropriate.(5) For the avoidance of doubt, the defence under this section may berelied upon irrespective of whether the statement complained of is astatement of fact or a statement of opinion.(6) The common law defence known as the Reynolds defence isabolished.[51] The explanatory notes describe the provision as based on the Reynoldscommon law defence and as intended to reflect the principles established in that caseand subsequent cases. Section 4(3) concerns reportage.32[52] Meantime in Canada, in 2009, the Supreme Court of Canada also had occasionto consider the same issues in the landmark decision of Grant v Torstar Corp.3332 Explanatory Notes at [29] and [32]. These were written by the Ministry of Justice, and were notendorsed by Parliament.33 Grant v Torstar Corp 2009 SCC 61, [2009] 3 SCR 640.It concluded that the law of defamation in Canada should be modified to recognise anew defence of responsible communication on matters of public interest. Such adefence would, the Court said, represent "a reasonable and proportionate response tothe need to protect reputation while sustaining the public exchange of information thatis vital to modern Canadian society".34 As will become apparent, we have found theTorstar decision particularly helpful.Our analysis[53] The law of defamation seeks to strike a just balance between two cherishedrights — the right to protection of reputation (intimately related to the protection ofpersonal privacy)35 and the right to freedom of expression which includes the freedomto impart and receive information and ideas. Striking the balance is "a value judgmentinformed by local circumstances and guided by principle".36[54] In the Lange decisions, this Court altered that balance in favour of freedom ofspeech. It did so essentially because it considered the existing law gave insufficientrecognition to the media's critical role in a modern democracy as the channel forexchange of news and opinions among the public as a whole. The value of informedpolitical public debate was seen as high. This Court must also have been mindful ofthe public interest in effective investigative journalism, something which the currentlaw of qualified privilege was seen as impeding by preventing the publication of true(but not provably true) stories.[55] The Court was not prepared to follow Reynolds and extend the scope of theprivilege beyond political discussion. It considered that to do so would be to alter thestructure of the law of qualified privilege in a way which would add to uncertainty andreduce the role of the jury in defamation trials.37 The Court also considered thatintroducing a responsible journalism test was not warranted in this country due toimportant differences between the New Zealand media and the English media. The34 At [86].35 Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 at 1179; quoted in Lange v Atkinson[1997] 2 NZLR 22 (HC) [Lange (HC)] at 31; and Lange (No 1), above n 3, at 450.36 Lange (HC), above n 35, at 43; cited with approval by this Court in Lange (No 1), above n 3,at 432.37 Lange (No 2), above n 3, at [24]–[25].Court quoted a statement from the former Minister of Justice to the effect that mediaintrusion into the daily lives of New Zealanders was "rather tame" compared with thesituation in the United Kingdom and that the standard of New Zealand journalism wassuperior.38 New Zealand, the Court said, had "not encountered the worst excesses andirresponsibilities of the English national daily tabloids",39 noting also that thecirculation of the British national papers far exceeded that of any New Zealandnewspaper.40[56] Eighteen years later however, we consider it is again time to strike a newbalance by recognising the existence of a new defence of public interestcommunication that is not confined to parliamentarians or political issues, but extendsto all matters of significant public concern and which is subject to a responsibilityrequirement. Although the existence of such a defence was rejected in Lange, weconsider that subsequent societal and legal developments justify recognising it now.In particular, we point to the following:(a) Significantly greater power resides outside the political sphere than itdid at the time Lange was decided and there is increased publicexpectation in the accountability of non political groups. As noted bythe authors of The Law of Torts in New Zealand, there are many typesof public figures, other than politicians and state employees, who areinvolved in the formation of policy or who in other ways have a majorimpact on the economy and the lives of New Zealanders.41 In thosecircumstances it is illogical to confine the defence to politicaldiscussion. This is, we consider, reflected in several High Courtdecisions where inroads were made by judges who clearly felt overlyconstrained by the limits of the Lange defence.42 The recognition of a38 At [34]; quoting Sir Douglas Graham, who was then Minister of Justice, in Karl du FresneFree Press, Free Society (Newspaper Publishers Assoc of New Zealand, Wellington, 1994) at 26and 34.39 At [34].40 At [35].41 Ursula Cheer "Defamation" in Stephen Todd (ed) The Law of Torts in New Zealand (7th ed,Thompson Reuters, Wellington, 2016) 839 at 930.42 See Cheer, above n 41, at 931–934; and the cases above n 2.new public interest defence is in our view a logical extension of thosecases.(b) The significant changes in mass communication arising from newtechnologies whereby statements can be published in seconds to a massaudience potentially numbering in the millions. Comparisons betweenthe reach of a defamatory statement in New Zealand as opposed to thatin England are plainly no longer relevant considerations.(c) The emergence of social media and the "citizen journalist" which hasradically changed the nature of public discourse. Bloggers and thosewho comment on blogs, tweeters, and users of Facebook and othersocial media are modern phenomena largely unknown to the Court inLange. While the mainstream New Zealand media may still be asresponsible as the Court in Lange considered it was, the proliferationof unregulated bloggers and other commentators who can be recklessmeans that the imposition of a responsibility requirement is highlydesirable and a necessary safeguard for reputation and privacy rights.It would also provide much needed clarity and certainty in anunregulated world. The other alternative would be to deny the defencealtogether to anyone other than the mainstream media but we do notconsider that drawing such a distinction would be justified either as amatter of logic, policy or principle. Non-media commentators have animportant role to play.(d) The increasing prominence of the New Zealand Bill of Rights Actincluding the right to freedom of expression in our jurisprudence; thegreater exploration of the boundaries of that right and a closerconsideration of the right to privacy, all of which in combination justifyextending the scope of the defence beyond political discussion bymainstream media but subject to a responsibility requirement.(e) The diminishing importance of the jury in defamation trials,43 whichundermines concerns expressed in Lange about the effect of Reynolds.(f) The developments in other common law jurisdictions.[57] Finally, we note there is nothing in the Defamation Act 1992 which wouldpreclude recognition of such a defence.44[58] Building on the English and Canadian case law, we consider the elements ofthe new defence should be:(a) the subject matter of the publication was of public interest; and(b) the communication was responsible.[59] On both issues, the defendant bears the onus of proof. As already mentioned,in light of new technologies which enable anyone to communicate to the world atlarge, it is a defence that should be available to all who publish material of publicinterest in any medium. We therefore follow the approach taken in Torstar and do notstyle the defence as one of responsible journalism, but rather responsiblecommunication on a matter of public interest.45[60] We acknowledge the difficulties of applying some aspects of the responsibilitycriteria to non-media defendants who communicate defamatory material in quitedifferent ways to the mainstream media.46 However we do not consider these to beinsuperable. They are capable of being worked out on a case by case basis as hasoccurred in England.43 Section 11 of the Defamation Act 2013 (UK) abolished the right to trial by jury; and see thediscussion in Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB), [2014] EMLR 32 at[58]–[71] and [76]–[79]; and Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB)at [114]. See also Craig v Slater, above n 2, at [38] where Toogood J held the complexity of thequalified privilege defences advanced necessitated a judge alone hearing.44 See further at [79] below.45 Torstar, above n 33, at [96]–[97].46 Barendt, above n 29, at 11–12.[61] What then should be the respective roles of judge and jury in relation to thenew defence? On this issue, there was a divergence of opinion in Torstar.The majority held it was for the trial judge to decide whether the communicationrelates to a matter of public interest, but for the jury to determine whether it wasresponsible.47 Dissenting solely on this point, Abella J considered both elementsshould be determined by the judge.48 Her view is consistent with the approach inReynolds.49 In Lange, the issue was left open.50[62] All counsel in this case agreed that in the event we decided to recognise a newdefence of public interest, we should adopt the approach advocated by Abella J.We have come to the same view for the following reasons:(a) Unlike the Canadian Supreme Court, we are not constrained by anyspecific legislative provisions. The majority in Torstar considered thatto deny a central role to the jury breached a provision in the OntarioLibel and Slander Act 1990.51(b) The issues of public interest and responsibility are so interconnected itis desirable they be determined by the same decision maker. As notedby Abella J, there is very little conceptual difference between the twoelements of the defence.52(c) Determining whether a communication has met the applicable standardof responsibility involves mixed questions of fact and law. It is a highlyevaluative exercise better suited to judicial assessment.(d) Requiring juries to determine whether a communication wasresponsible is likely to result in lengthy and complicated jury questions.Defamation jury trials are already notorious for their complexity, length47 At [100] and [128]–[135].48 At [142]–[143].49 Reynolds, above n 17, at 205D–E per Lord Nicholls, 215–216 per Lord Steyn, and 236F–237 perLord Hope; see also Jameel v Wall Street Journal Europe Sprl [2005] EWCA Civ 74, [2005] QB904 [Jameel (CA)] at [70].50 Lange (No 1), above n 3, at 470–471; and Lange (No 2), above n 3, at [25].51 Torstar, above n 33, at [131]–[133]; referring to Libel and Slander Act RSO 1990 c L-12, s 14.52 At [142].and cost. Recognition of a new defence should not compound thatproblem.(e) Concerns expressed by the majority in Torstar that the Englishapproach entails a complex back and forth between the jurydetermining the primary facts and the judge determining responsibilitycan be minimised by appropriate trial management.53(f) Those concerns are strongly outweighed by the obvious advantages ofhaving a reasoned decision from a judge about whether the media hasacted responsibly.(g) The Abella J approach is consistent with a growing recognition thatbecause defamation trials are often so complex, it is inappropriate forjuries to be expected to determine mixed questions of fact and law.54[63] Accordingly, in a case tried by a jury in New Zealand, it will be for thetrial judge to determine whether the two elements of the defence are established basedon the primary facts as found by the jury.[64] In determining whether the subject matter of the publication was of publicinterest, the judge should step back and look at the thrust of the publication as a whole.It is not necessary to find a separate public interest justification for each item ofinformation. As already mentioned, public interest is not confined to publications onpolitical matters. It is also not necessary the plaintiff be a public figure.[65] Defining what is a matter of public interest in the abstract with any precisionis a notoriously difficult exercise. Trial judges are however likely to find thediscussion of public interest in Torstar of assistance. There it was said that to be ofpublic interest the subject matter should be one inviting public attention, or aboutwhich the public or a segment of the public has some substantial concern because it53 See Torstar, above n 33, at [134].54 See above n 43.affects the welfare of citizens, or one to which considerable public notoriety orcontroversy has attached.55[66] As regards determining whether the communication was responsible, that is tobe determined by the judge having regard to all the relevant circumstances of thepublication.[67] Relevant circumstances to be taken into account may include:(a) The seriousness of the allegation — the more serious the allegation, thegreater the degree of diligence to verify it.(b) The degree of public importance.(c) The urgency of the matter — did the public's need to know require thedefendant to publish when it did, taking into account that news is oftena perishable commodity.56(d) The reliability of any source.(e) Whether comment was sought from the plaintiff and accuratelyreported — this was described in Torstar as a core factor because itspeaks to the essential sense of fairness the defence is intended topromote. In most cases it is inherently unfair to publish defamatoryallegations of fact without giving the target an opportunity to respond.Failure to do so also heightens the risk of inaccuracy. The target maywell be able to offer relevant information beyond bare denial.57(f) The tone of the publication.(g) The inclusion of defamatory statements which were not necessary tocommunicate on the matter of public interest.55 Torstar, above n 33, at [99]–[106].56 Reynolds, above n 17, at 205B–C per Lord Nicholls.57 Torstar, above n 33, at [116].[68] The list of factors is not exhaustive and in some cases the circumstances maybe such that not all factors in the list are relevant. In some cases, publishingdefamatory allegations from an unidentified source may not be responsible. In othercases it may be responsible if for example the publisher had good reason to considerthe source reliable and the article made it clear it was relying on a confidential sourceor sources. In short, the factors must be applied in a practical and flexible mannerwith regard to the practical realities and with some deference to the editorial judgmentof the publisher, particularly in cases involving professional editors and journalists.Reportage[69] The Court has not been able to agree whether reportage — the neutral reportingof attributed allegations — should be regarded as a separate defence, distinct from thenew public interest defence. At [104] to [114] Brown J explains why he considers itis conceptually different and also why its recognition is problematic. The majority ofus (French and Winkelmann JJ) however take a different view and what follows from[70] to [81] is the opinion of the majority.[70] The majority agrees with the English and Canadian authorities that reportageshould not be regarded as a separate defence.58 In our view, it would be illogical to doso when correctly analysed reportage can be seen to rest on both public interest andresponsible communication, the scope of what amounts to responsible beingnecessarily tailored to the nature of the particular public interest at issue.[71] In the context of a situation where the public interest concerned lies in the factthe allegation was made, rather than the truth of its contents, the publisher may berelieved of the usual responsibility obligation of attempting to verify the contents asdistinct from verifying the making of the allegation but that is not the end of theresponsibility inquiry. The court will also consider whether, viewing the publicationas a whole, the publishers have made it clear they do not subscribe to any belief in thetruth of the allegation and have not adopted it as their own. Relevant considerationswill include whether the source of the information is disclosed in the publication and58 Flood, above n 28, at [35]; relying on Roberts v Gable, above n 30, at [60]; and Torstar,above n 33, at [121].the tone of the publication,59 including whether the allegations have beenembellished.60 Timing may also be relevant. If, for example, the allegation or itscontext was stale or there was some other ulterior reason for the timing of thepublication, then reportage may not be available even if the report was otherwise full,fair and neutral.61[72] To put it another way, the concept of neutral reportage rests on both elementsof the new defence. The fact it has its own label does not make it in substance aseparate defence.[73] In Torstar, the Supreme Court's treatment of reportage suggests that theexistence of a dispute between the originator of the defamation and the person defamedis required.62 Although that is also a requirement under the new statutory defence inthe United Kingdom,63 we would prefer not to circumscribe the concept in that way.In our view, making the existence of a dispute a prerequisite is likely to divert attentionaway from the core principle of public interest to unhelpful and potentially distractingarguments about what constitutes a dispute, including whether a denial of an allegationis sufficient to create a dispute. In principle and as a matter of logic, there is no reasonwhy a public interest defence could not in an appropriate case protect the disinterestedrepetition of a unilateral allegation.64[74] In his separate judgment, Brown J expresses concern that allowing a reportagedefence lacks coherence and that in light of the repetition rule, it makes little sensethat a publisher can publish a defamatory statement without the belief in its truth andbe absolved from liability because the publisher indicates that it did not adopt theallegation. However, as was pointed out in Roberts v Gable, the repetition rule onlyconcerns the scope of the defence of justification in report cases.65 It does not limit59 Roberts v Gable, above n 30, at [70].60 Galloway v Telegraph Group Ltd [2006] EWCA Civ 17 at [72]–[73]; Roberts v Gable, above n 30,at [61(5)]; and Charman, above n 30, at [48].61 Roberts v Gable, above n 30, at [70]. See generally Matthew Collins Collins on Defamation(Oxford University Press, Oxford, 2014) at [12.78]–[12.85].62 See at [76] and [120].63 Defamation Act 2013 (UK), s 4(3).64 Charman, above n 30, at [91] per Sedley LJ.65 Roberts v Gable, above n 30, at [56]–[59] per Ward LJ; referring to Al-Fagih, above n 30, at [36].the scope of qualified privilege and (we would add) the scope of other defences basedon concepts of public interest.[75] A further concern raised by Brown J is that reportage could create a perverseincentive for journalists not to engage in one of their fundamental roles, theverification of important facts.66 This, and a related concern that it represents too greatan inroad into reputation and privacy rights are however, in our assessment, met bythe fact that reportage has been and is to be viewed as a special and relatively raresituation.67[76] The reality is that, in the vast majority of cases, if there is public interest in anallegation it will lie in the fact the allegation is or may be true (that is, its contents),not in the fact it was made — a distinction which, contrary to Brown J, we consider isintelligible and workable. Reportage will only be available in circumstances wherethe public interest in the fact of the allegation is overwhelming and so compelling onits own that urgent reporting of it is justified without further investigation.A hypothetical example of such a situation might be the fact that the Governor-Generalhas alleged a senior Cabinet Minister is taking bribes, thereby triggering a possibleconstitutional crisis.[77] The stakes for publishers — mainstream or otherwise — who do not attemptto verify the truth of the defamatory allegation are high. They are likely to do so attheir peril and accordingly the incentive to make the attempt remains high.[78] Unlike Brown J, we also do not consider that recognition of reportage is in anyway inconsistent with the existence of qualified privilege defences under theDefamation Act relating to the reporting of public meetings, inquiries, court hearingsand the like.68 In those cases, the public interest underlying the privilege derives fromthe location where the statement is made, not the fact it was made.66 At [105] below.67 Flood, above n 28, at [77] per Lord Phillips; Alastair Mullis and Richard Parkes (eds) Gatley onLibel and Slander (12th ed, Sweet and Maxwell, London, 2013) at 666; and Roberts v Gable,above n 30, at [74].68 Sections 16–18 and sch 1.[79] The Defamation Act does not purport to be a code and,69 as Langedemonstrates, the statutory qualified privilege defences have not precluded the courtsfrom expanding the scope of qualified privilege or recognising new categories ofqualified privilege. If, as Brown J accepts, the Defamation Act does not preclude usfrom recognising a new defence of public interest, then there is in our respectful viewno logical justification for singling out reportage. We note too that the same statutorydefences relied on by Brown J were contained in the equivalent United Kingdomstatute in force at the time the first reportage cases were decided.70 Yet, none of theappellate judges involved in those cases ever expressed concern that the recognitionof such a concept ran counter to Parliament's intention or created any tension requiringreconciliation.71[80] To sum up, in the view of the majority as with the Reynolds approach, the newdefence thus involves a spectrum.72 At one end is reportage where the mere fact ofthe statement being made is itself of public interest and is reported as being of publicinterest. Further along the spectrum is a situation as in Flood which involved thepublication not only of the fact of the plaintiff's investigation for corruption, but thenature of the alleged corruption. There the House of Lords said the press could notdisclaim all responsibilities for checking their sources as far as practical, but providedthe article was of real and unmistakeable public interest and was fairly presented, thepress were not required to produce primary evidence of the information given bysources.73 Further still along the spectrum that may however be necessary.[81] Finally, we record that although reportage need not be pleaded as a separatedefence, it should be pleaded as a particular of the public interest defence.69 For example, s 16(3) of the Defamation Act provides "[n]othing in this section limits any otherrule of law relating to qualified privilege."70 Defamation Act 1996 (UK), sch 1.71 The 2002 decision relied upon by Brown J, English v Hastie Publishing Ltd [2002] All ER (D) 11(Feb) (QB), where some caution was expressed is a first instance decision.72 Flood, above n 28, at [158] per Lord Mance.73 At [158].Other aspects of the new defence[82] In the interests of doctrinal coherence, we consider that, as is the case inCanada,74 the new defence should be a standalone defence and not part of the rubricof qualified privilege.[83] Although the English version of the defence was identified in Reynolds as aspecies of qualified privilege, this characterisation was subsequently consideredmisleading by several Law Lords in both Jameel and Flood. As they pointed out,correctly analysed, the Reynolds defence is a different jurisprudential creature fromthe traditional form of privilege.75 It arises primarily because of the subject matter ofthe publication — a matter of public interest — and not the occasion on which it ispublished, as in the traditional form. Unlike the traditional form, there is also noquestion of the "privilege" being defeated by showing the privilege was abused(malice), because the propriety of the defendant's conduct is built into the conditionsunder which the material is privileged. This in turn impacts on the incidence of theonus of proof. Under the traditional form of qualified privilege, it is for the plaintiffto prove the privilege is lost because of malice on the part of the defendant, whereasunder the Reynolds defence and the defence recognised in this judgment, it is forthe defendant to prove he or she acted responsibly.[84] Where then does recognition of this new defence in New Zealand leave casesinvolving parliamentarians and political discussion?[85] For the reasons already discussed, we consider the same sorts of considerationswhich will apply under the new defence also apply currently under Lange in relationto politicians, and therefore outcomes are likely to be the same. However, to leaveMembers of Parliament or political discussion as a separate category to continue to begoverned at least nominally by qualified privilege would be highly unsatisfactory.Such a distinction would not be justified in either principle or policy and it wouldcreate confusion.74 Torstar, above n 33, at [88]–[95].75 Jameel, above n 28, at [46] per Lord Hoffmann (with whom Lady Hale agreed); and Flood,above n 28, at [38] per Lord Phillips. Lord Phillips first applied the phrase "differentjurisprudential creature" in Loutchansky v Times Newspapers Ltd (Nos 2–5) [2001] EWCACiv 1805, [2002] QB 783 at [35].[86] We therefore conclude that the form of qualified privilege recognised inLange v Atkinson should no longer be an available defence, being effectivelysubsumed in the new defence of public interest. We direct that all references to"qualified privilege" and "Lange v Atkinson" in Māori TV's pleaded defence of"Qualified Privilege/Public interest" should be struck out.[87] Before turning to apply the new defence to the facts of this case, it is necessaryfor us to first address an application to adduce further evidence on appeal.Application to adduce further evidence[88] Māori TV sought leave to adduce further evidence for the purposes of theappeal. The proposed further evidence consisted of evidence relating to events afterthe publication of the amended website story.[89] In our view, as a matter of principle, the conduct of the publisher for thepurposes of the defence must be assessed as at the time of publication.76 What wasthe position as it appeared then to those responsible for publication?77 Evidence ofsubsequent events and conduct may lead to inferences about conduct at the earlier timebut Māori TV does not suggest that is the case here. The proposed evidence istherefore irrelevant to this appeal and the application is accordingly declined.78[90] We now turn to consider whether on the pleaded facts and uncontestedevidence, there is no prospect of Māori TV establishing that the publicationsconcerned a matter of public interest and were the product of responsiblecommunication.Should the defence be struck out on the facts?[91] In the High Court, the Judge's focus was understandably very much on theissue of whether the defence existed. Her consideration of whether the new defence76 Mullis and Parkes, above n 67, at 655.77 Flood, above n 28, at [122] per Lord Mance; and Jameel, above n 28, at [62] per Lord Hoffmann.78 That is not to say the evidence will be irrelevant at the hearing.would inevitably fail on the facts of the case was therefore limited and did not considereach publication separately as was required.[92] On appeal, it was common ground that all three publications were on a matterof public interest. We agree, having regard to the leadership role of the Māori Councilin Māoridom and its importance in New Zealand society generally. That must be sowhether the thrust of the story is described as dissension within the Council as arguedby Māori TV, or whether the thrust is allegations of wrongdoing impacting on theworkings of the Māori Council as argued by the appellants.[93] The key issue in dispute on appeal is whether the second element of the defenceis reasonably arguable, that is to say whether the communications can tenably beregarded as responsible communications.[94] In holding it was tenable, Mallon J classified the case as a reportage case andheld it was reasonably arguable the reporting was responsible and neutral. In our viewhowever, the case is not capable of being classified as a reportage case. One of themost prominent assertions if not the most prominent assertion in all three publicationswas that Ms Hall had been dismissed. As counsel for the appellants Mr Geiringersubmitted, this was portrayed as fact. For reportage to be tenable, it would need tohave been clearly and unequivocally conveyed as a central allegation from a third partywhich Māori TV was not adopting.79[95] We would therefore strike out any reference to reportage in the pleaded defencebecause it cannot possibly succeed.[96] We would also strike out as untenable a defence of public interest in relationto the first website story for the period before the video clip was posted.80 The failureto publish Ms Hall's statement which Māori TV had in its possession is in our viewfatal to the defence. It was a fundamental failing.79 Flood, above n 28, at [77].80 See at [18] above.[97] As regards the other publications, which did contain Ms Hall's statement,Mr Geiringer advanced the following further criticisms:(a) It was irresponsible for Māori TV to have proceeded to publish the storywithout waiting a reasonable time for Ms Hall's promiseddocumentation and more detailed statement. There was no urgency.Delaying would have assisted Māori TV to find out the truth and correctaspects of the story without compromising its timeliness. In thosecircumstances, Māori TV could not be said to have taken reasonablesteps to verify the story.(b) It was irresponsible not to make any attempt to contact Sir Edward atall.(c) In the absence of any transcript of the video clip being made availablein the first website story, once the video was posted, Māori TV shouldhave alerted readers that they needed to watch the video to see asummary of Ms Hall's response.(d) There was no attempt to contact the Māori Council secretary eventhough Māori TV knew the validity of the meeting was in dispute.The secretary was designated as the Council's primary media contact.(e) The negligent omission of the quote marks in the first website story.(f) The video clip only summarised Ms Hall's statement. It did not conveythe gist of it. It did not mention her claim to have documentaryevidence that would easily disprove the allegations. Nor that sheneeded more time. Nor did it mention that her critics had ulteriormotives, nor the reasons she said the meeting was invalid.[98] We agree Māori TV appears to face some difficulties but it is important to bearin mind that the assessment of "responsible communication" is not a tick box exerciseand that the strike-out jurisdiction should only be exercised sparingly.81 The mattersraised by Mr Geiringer are, we consider, properly matters reserved for trial and notgrounds for strike out.[99] Māori TV claims for example that in the past Ms Hall has acted as Sir Edward'sspokesperson and therefore it was reasonable for Māori TV to assume she would speakon behalf of them both in this instance. It further contends that Ms Hall deliberatelydelayed sending her response to Māori TV: that she sent her response to theDominion Post newspaper at 4 pm, but did not send the same response to Māori TVuntil 5.15 pm, knowing the broadcast would be at 5.30 pm. Issues about urgency anddelays raise questions of degree that can only fairly be determined in the light of allthe evidence as a whole. We also consider it cannot be said on the evidence before usthat Māori TV made no attempts at all to verify the allegations.Outcome[100] The application for leave to adduce further evidence is declined.[101] The appeal is allowed in part. References to "qualified privilege","Lange v Atkinson", and "reportage" are struck out from the respondents' qualifiedprivilege/public interest defence. The respondents' defence of public interest inrespect of the first website story for the period preceding the posting of the video clipis also struck out. The appeal is otherwise dismissed.[102] As regards costs, we consider that this being fundamentally in the nature of atest case, costs should lie where they fall. Accordingly, we make no award of costs.[103] Finally, we would like to acknowledge the assistance we have gained from theexcellent submissions made by counsel on both sides.81 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General[2008] NZSC 45, [2008] 3 NZLR 725 at [33].BROWN J[104] I agree with the judgment of French and Winkelmann JJ concerning therecognition of a new defence of public interest communication which is subject to aresponsibility requirement, in particular the analysis at [53]–[68] and [82]–[86]. I amalso in agreement with the disposition of the application to adduce further evidenceand the appeal itself. I write separately solely with reference to the proposed newdefence of reportage.[105] In my view, the argument advanced by the appellants against the recognitionof a reportage defence as part of New Zealand law has much to commend it.Considerations which I find persuasive include:82• First, such a defence lacks coherency. In view of the repetition rule itmakes little sense that a publisher can publish a defamatory statementwithout the belief in its truth and be absolved from liability because itindicates that it does not adopt the allegation.• Secondly, such a defence could create a perverse incentive forjournalists not to engage in one of their fundamental roles, theverification of important facts. Alternatively, it could place a journalistin the unenviable position of not knowing whether he or she shouldseek to verify an allegation.• Thirdly, as experience with the hearsay principles tends to indicate,drawing the distinction between allegations that are important for truthand those that are important simply for the fact they are made couldprove elusive in practice.[106] The majority considers that reportage should be viewed as a special andcomparatively rare situation,83 despite extending the defence beyond the limitation82 The submission that the boundaries of the defence are far from clear also has merit.The difficulties are highlighted in articles cited by the appellants: Nadine Zoë Armstrong"The Emerging Defence of Reportage" (2009) 40 VUWLR 441; Bosland, above n 29; andBusuttil, above n 30.83 At [75] above.explicit in s 4(3) of the Defamation Act 2013 (UK) and implicit in Torstar.84 Whilethe mode of reporting by the mainstream media may not frequently lend itself to areportage defence, I am not confident that the same can be said of bloggers and othercommentators, the emergence of whom is a significant factor in the recognition of thenew defence of public interest communication.85[107] A further consideration is the interface with New Zealand's Defamation Act.James Goudkamp observes that, whereas legislation has had little impact on thedefinitional elements of most torts, defences have been heavily affected by statute.86Defamation is a good example with the statutory defences of truth, honest opinion,absolute privilege, qualified privilege and innocent dissemination.87[108] The majority contends that if, as I agree, nothing in the Defamation Actprecludes recognition of a defence of public interest communication which is subjectto a responsibility requirement then there is no logical justification for singling outreportage. However the fact is that the Act already provides by means of the defenceof qualified privilege88 a limited protection for the media (and others) who merelyrelay to the public words written or spoken by others.89 In the case of the mattersspecified in pt 2 of sch 1, it is a requirement that they be of public interest in any placein which the publication occurs.90[109] I do not consider that the majority's rationale for the statutory qualifiedprivilege defence of mere reporting as deriving from the location where a statement ismade is of moment.91 Item 8 in pt 2 refers to a fair and accurate report of theproceedings at a meeting held in New Zealand that (a) is bona fide and lawfully heldfor a lawful purpose and for the furtherance or discussion of any matter of public84 See at [73] above; and Torstar, above n 33, at [120]–[121].85 At [56(c)] above.86 James Goudkamp "Statutes and Tort Defences" in TT Arvind and Jenny Steele (eds) Tort Law andthe Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing,Oxford, 2013) 31 at 31.87 Respectively ss 8, 9, 13–14, 16, and 21.88 Sections 16(2) and 18, and sch 1, pt 2.89 Cheer, above n 41, at [16.11.02(2)].90 Section 18(1).91 At [78].concern and (b) is open to the public, whether with or without restriction. "Meeting"is not defined.[110] However in McCartan Turkington Breen (A Firm) v Times Newspapers LtdLord Bingham of Cornhill explained that the phrase "public meeting" must beinterpreted in a manner which gives effect to the intention of the legislature "in thesocial and other conditions which obtain today".92 In his view "a press conferenceattended by members of the press and perhaps other members of the public has becomean important vehicle for promoting the discussion and furtherance of matters of publicconcern" and there was nothing in the nature of such a conference which took it outsidethe ordinary meaning of public meeting.93 It follows in my view that the ambit of thestatutory defence is potentially broad and overlaps at least to some extent with theproposed common law reportage defence.[111] The majority also relies on the absence of any expression of judicial concernthat the recognition of reportage runs counter to Parliament's intention.94 However inEngland v Hastie Publishing Ltd, after noting Lord Bingham's comments in McCartanconcerning the alternative role of the press as that of reporter,95 Gray J expressed theview that a court should be reluctant to hold that common law privilege is available toa publication on the ground that it constitutes reportage in circumstances where so tohold would confer greater protection on the publisher than Parliament had deemedappropriate.96[112] Those observations resonate with me. We did not hear argument on the issueof the reconciliation of a reportage defence with the Defamation Act defences. I ammindful of Andrew Burrows' exhortation that statutes and common law must be seen92 McCartan Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277 (HL) at 292 withreference to the equivalent provisions in the Defamation Act (Northern Ireland) 1955.93 At 292.94 At [79].95 McCartan, above n 92, at 291. Lord Bingham emphasised the distinction between cases where ajournalist is exercising a reporting function as opposed to the function of exploring factualsituations and reporting the outcome of such investigations. He explained that in the former, therole of reporter, the press then acts in a very literal sense as a medium of communication.96 English v Hastie Publishing Ltd, above n 71, at [21]. Noted in Jameel (CA), above n 49, at [21].as integrated parts of the whole law of obligations.97 The common law should not bedeveloped in a manner which is inconsistent with a relevant statute. To adapt Bennionon Statutory Interpretation's metaphor of the floor (the common law) and the rug(a statute),98 as this Court observed in Vector Ltd v Transpower New Zealand Ltd "therug and the floor must run the same way".99[113] If reportage is to be recognised in New Zealand as a common law defence, thenI consider that it should be viewed as a discrete defence rather than merely as a specialmanifestation of a public interest defence which has a responsible journalismunderpinning. I am attracted to the analysis of Sedley LJ in Charman v OrionPublishing Group Ltd that the very dependence of a reportage defence on the baldretelling of defamatory statements makes it forensically problematical to fall backupon an alternative defence of responsible journalism.100 I agree with his view thatpleaders may need to decide which it is to be. I do not consider that the majority'sproposal that reportage should be pleaded as a particular of the public interest defencesurmounts this difficulty.101 Hence I do not share the majority's perception of the newdefence of public interest communication as one embodying the nature of a spectrumwhich includes reportage, albeit at the furthest point on that spectrum.102[114] Whatever may be the nature and extent of a reportage defence, I agree with theconclusion at [94] and [95] that the present case is not capable of being classified as areportage case and that consequently any reference to reportage in the pleaded defenceshould be struck out because it cannot possibly succeed. In those circumstances it ismy view that consideration of the issue of recognition of a new defence of reportageand (if adopted) its ambit and characterisation should await a case where the issues aresquarely engaged.Solicitors:Darroch Forrest, Wellington for AppellantsSimpson Grierson, Auckland for Respondents97 Andrew Burrows The Relationship Between Common Law and Statute in the Law of Obligations(2012) 128 LQR 232 at 258. He considered that to "view them as if unmixed oil and water is aprofound mistake".98 Oliver Jones Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 168.The metaphor is not repeated in the 7th edition: Diggory Bailey and Luke Norbury Bennion onStatutory Interpretation (7th ed, LexisNexis, London, 2017).99 Vector Ltd v Transpower New Zealand Ltd [1999] 3 NZLR 646 (CA) at [53].100 Charman, above n 30, at [91].101 At [81] above.102 At [80] above.