The Court of Appeal’s decision in Craig v Slater [2020] NZCA 305 could be one of the last decisions of the Colin Craig litigation extravaganza – a Daily List staple since 2015.

Given all the Craig-related decisions that have come before—we presently have 39 such judgments in our Court Decisions—any recount of the essential facts would be as novel as a Friends re-run.  However, the Court addressed some important legal principles which, being an appellate decision—and written by the learned President, no less—will likely resonate across New Zealand’s defamation landscape for years to come.

Here are five points we’ve been pondering since the decision was released – which you can find here.

Appellate courts have a free reign on defamatory meaning

A long-standing principle in defamation law is that appellate courts give considerable deference to the trier of fact on the issue of defamatory meaning.

Not so in New Zealand, says the Court of Appeal.  Eschewing the traditional approach, the Court said that in light of the Supreme Court’s decision in Austin, Nichols & Co v Stichting Lodestar, an appellate court need not defer at all to the trial court’s assessment of defamatory meaning and must reach its own conclusion on the issue.  As an application of Austin, Nichols, this makes perfect sense: the issue is purely objective; it will not turn on credibility nor, for that matter, any evidence at all – save in the case of a true-innuendo meaning.  Certainly a trial judge will have been in no better position than the appellate court to determine the issue.

But what about the decisions of juries?  Should an exception to Austin, Nichols be carved out where an appellate court is reviewing the findings of a jury?  If a jury’s findings really have some special constitutional significance, then an exception is surely justified.

Defamation of a politician – was the Court seeking to lower the bar?

Surely not.  Yet in its observations, the Court could be mistaken for having purported to scale back decades of thinking that politicians must be thicker-skinned than us ordinary folk.

Of note, one of the statements at issue was that Craig had apparently led a “relentless and driven witch-hunt” to force a particular person from the Conservative Party, first as a parliamentary candidate, then as a board member, and then as an ordinary party member.  Craig had pleaded that the statement imputed he abused his power and manipulated the resources of the party to pursue a relentless and driven witch-hunt against the party member without any reasonable excuse.  The trial judge had found it was not defamatory.  The Court of Appeal said the statement was defamatory because it “attacks Mr Craig’s credit for good judgment and fairness, qualities expected of a political leader“.

For our part, while it is generally accepted that imputations about politicians are liable to be defamatory where they impute base, dishonest or dishonourable conduct, if every politician were to sue over claims they lacked good judgement, then this would seem problematic.

The finding probably just highlights the subjective nature of defamation proceedings: one judge might not think something is defamatory, while another judge considers the matter to be of a serious nature.  Certainly, it’s a reminder for cautious legal opinions.

We now have a decisive harm threshold, but its application is still a head-scratcher

The Court of Appeal approved the “more than minor harm” threshold, plumping for Palmer J’s assessment in Sellman v Slater and Low Volume Vehicle Technical Association v Brett, over Dobson J obiter endorsement of England’s “serious harm” threshold in CPA Australia v New Zealand Institute of Chartered Accountants.

The Court of Appeal put it like this:

We approve adoption of the “more than minor” harm requirement in New Zealand common law, for three reasons. The first is that damage to reputation is an essential element of the cause of action of defamation, for the reasons Tugendhat J canvassed in Thornton v Telegraph Media Group Ltd. The fact that damage is rebuttably presumed (in most cases) does not alter the fact that damage to reputational credit remains an element of the tort. Principle and proof should not be confused. Secondly, a threshold of this kind is a necessary consequence of the right to freedom of expression protected by s 14 of the New Zealand Bill of Rights Act 1990. We agree with the reasoning of Palmer J in Sellman v Slater on that point. Thirdly, we consider the requisite threshold standard — “more than minor harm” — was correctly identified in the same decision and is to be preferred to a higher standard based on the word “serious”.

The second and third reasons are readily understood – if not entirely convincing or complete.  Section 14 of NZBORA protects the freedom to “seek, receive, and impart information and opinions of any kind in any form”.  So the decision really just says this freedom may be impugned where the information or opinions imparted cause more than minor harm to the plaintiff’s reputation.  Okay.

The third reason—that “more than minor harm” harm is to be preferred over “serious harm“—is a visible endorsement of Palmer J’s comment in Sellman v Slater, namely: “It is possible for an actionable defamation that causes less than serious but more than minor harm to reputation to be reflected in a nominal award of damages, combined with a declaration of defamation. Such an outcome may still constitute a reasonable limitation on the right to freedom of expression.”  But apart from endorsing Palmer J’s threshold, the Court didn’t really add any analysis as to why this threshold is to be preferred – why New Zealand should be at odds with the English approach (and soon-to-be Scottish and Australian approaches) to harm.

In any case, for us, Palmer J’s comment was somewhat optimistic; it was predicated on a plaintiff seeking nominal damages and a declaration.  Plaintiffs never do this.  By seeking damages and a declaration, the plaintiff forgoes their presumptive solicit0r-client costs in the event the s 24 declaration is granted.  Plaintiffs also never claim nominal damages.  What’s more, if plaintiffs are awarded only nominal damages, then assuming they claimed a comparatively high sum, then they might exposed to a solicitor-client costs award against them under s 43(2).  Suddenly that declaration and nominal damages doesn’t look so attractive.  So for us, this reasoning falls into the sounds-good-but-never-will-happen-in-practice category.

Frankly, for us the whole issue of ‘harm’ continues to be muddled.  And particularly so, when one considers the Court’s first reason for approving the ‘more than minor harm’ threshold: that damage to reputation “is an essential element of the cause of action of defamation … [which is] rebuttably presumed (in most cases)“.

As the harm threshold has developed in England, the UK Supreme Court has now made clear that the requisite harm must be established by dint of evidence of actual reputational harm (leaning on the Jameel principle); not simply the intrinsic seriousness of an imputation (i.e. Thornton).  It would have been really helpful if the Court of Appeal had articulated where New Zealand stands on this.

Indeed, it’s all well and good for New Zealand to now have a definitive threshold principle, but the issue of proof of harm, and particularly the plaintiff’s role/burden in this, is not addressed by the Court, other than to say that harm to reputation is an “essential element of the cause of action” – so, a matter of proof for the plaintiff?

But this doesn’t stack up with the balance of the Court’s consideration of this issue.  By the Court’s explicit invoking of Thornton, this suggests any assessment of harm rests upon the intrinsic seriousness of the imputation pleaded (a pre-Lachaux Supreme Court understanding).  Further, by the Court’s finding that the presumption of harm is rebuttable, that suggests the Jameel principle remains alive and kicking, albeit this is a matter for a defendant to raise in a pre-trial strike-out application, not a threshold requirement for the plaintiff.

But then this is difficult to reconcile with the Court’s suggestion that harm is “rebuttably presumed (in most cases)”.  By this, is the Court saying the presumption of harm is rebuttable in most cases, or simply that harm will be presumed in most cases?

If in fact the issue of harm turns solely on the intrinsic seriousness of the imputation (a Thornton-type approach), then in fact the issue won’t be rebuttable in most cases; as soon as the plaintiff pleads a fairly serious imputation, then it won’t be rebuttable.  But of course the whole point of a rebuttable presumption of harm (per Jameel) is that the defendant can point to a lack of actual reputational harm irrespective of the seriousness of the imputation pleaded (e.g. Jameel itself, which concerned an imputation of funding terrorism).

The Court concluded its first reason with a pithy, “Principle and proof should not be confused.”  Sorry, but we remain deeply confused.

Damages, not declarations, are the primary remedy under New Zealand law

What seemed to be Craig’s main bone of contention was that the trial judge had found Slater liable for defamation on certain statements, had accordingly made a declaration under s 24 of the Act, but then refused to order any damages, saying that the declaration was sufficient vindication of Craig’s reputation for the relevant statements, and in any case Craig’s reputational damage was caused almost entirely by his own actions.

The two impugned statements were that Craig had placed his former press secretary under financial pressure to sleep with him, and that he had sexually harassed at least one other victim.

The Court of Appeal held the trial judge had erred in not awarding damages for two main reasons: First, that a nil damages award was a defective verdict.  (Although it wouldn’t be defective if all one sought was a declaration.)  Second, whatever the established truth of certain statements, the statements not established would have caused further reputational damage to Craig.  So, it would appear the Court perceived Craig should be awarded damages for the additional reputational discredit between labelled a sexual harasser versus a serial sexual harasser, and upon the incorrect claims of the methods by which Craig committed the established sexual harassment.  One might wonder why Craig would even bother pursuing this.

However, for us, the Court was right to recognise the primacy of damages as a remedy.  In a related piece of Craig litigation, Williams v Craig, the Court of Appeal had said, when outlining the principles of damages:

We add this observation: a favourable verdict on liability is the successful plaintiff’s primary vindication. Its primacy is acknowledged in the introduction by s 24 of the Defamation Act 1992 of the plaintiff’s right to seek only a declaration of liability with a consequential right to indemnity for an award of solicitor and client costs. The liability verdict is itself public recognition that a statement or statements made by a defendant is false and defamatory. It is that verdict which restores the plaintiff’s reputation (which may explain the tradition, followed at least by politicians, of donating damages awards to charity). …

This “observation” never sat right with us.  The ‘stamp of vindication’ by an award of damages is much better reflected than a mere declaration, which has no way to mark the seriousness of a defamatory allegation.  So, we’re pleased the Court of Appeal has balanced the ledger on this.

Whatever Durie’s intentions, RPIC really is a defence for journalists

In considering the appeal against the trial judge’s finding that some of Slater’s statements about Craig were protected by RPIC (Responsible Public Interest Communication), the Court of Appeal noted that the Court’s decision in Durie v Gardiner, which created the defence, had made it “available to all published material of public interest in any medium, and the defence was deliberately not styled as one of responsible journalism“.

In this case, one of the striking findings of the trial judge had been that, to make out the defence, Slater was not required to seek Craig’s comment in order to discharge the responsibility limb of the defence.  But the Court of Appeal allowed the appeal on this ground, noting: “Diligent effort at verification is the heart of the defence. Without evident efforts to do so — on which the publisher bears the onus of proof — the defence is unlikely to be engaged.”   It had also been accepted that to avail himself of the defence, Slater, a political blogger, “should not be subject to a lower threshold of responsibility than the mainstream media“.

For our part, since the defence of RPIC was established by the Court of Appeal in 2018, we’ve seen a number of different non-media defendants raise it in pleadings: sources referred to in books, businesspeople making statements on the radio, and politicians making press statements.  But in reality, unless the defendant has acted like a good journalist—in particular by taking the verification steps expected of journalists, in most cases by putting the intended allegations to the plaintiff—then the defence really is unlikely to succeed.

For us at least, the noble (naive?) intentions of the Durie court, that the defence may be relied on by non-media, have not been borne out in practice.