When Waikato University’s student magazine overstepped the mark.

Case reviewed: Jensen v Clark, High Court, Hamilton
[1982] 2 NZLR 268

Background

In 1974, an edition of Nexus, Waikato University’s student magazine, made allegations about the Head of the History Department, Professor Jensen.  It was alleged that Jensen pursued vendettas against fellow staff members, by falsely promising promotions and awarding students they were supervising lower grades in order to discredit them.  A settlement in relation to these allegations was reached between the University of Waikato, Jensen and the two lecturers whose relationship with Jensen was at issue.  Jensen agreed not to sue the Waikato University Students’ Association or the then-publisher of Nexus.

In 1976, Nexus, under a new publisher, re-hashed material from the disputed 1974 edition.  As the Judge in the case would find, the 1976 edition—the subject of the proceeding—imputed across over a dozen individual articles and a cartoon that Jensen “was a devious and vindictive individual who would not hesitate to sacrifice the welfare of his students and the good name of his University in order to further his vendettas”.  It was also alleged that Jensen had broken the 1974 settlement agreement.

Jensen sued the editor, the co-editor, and the printer, Wanganui Newspapers Ltd, which was employed not as the official publisher of the magazine, but as a jobbing printer.  The editor retracted the statements complained of and expressed publicly his regret for the publication.  The co-editor also provided a retraction. Jensen discontinued his action against both.  However, these settlements did not involve payment of any damages by the editor or co-editor, and were effected in a manner that preserved Jensen’s right to sue the printer.

The printer, in its defence, challenged Jensen to prove all the allegations against it, and raised the defence of ‘innocent dissemination’ – at that time a common-law defence in New Zealand.

Judgment

Justice Prichard rejected the defence.  He found that, because the printer’s management were aware of the general nature of the publication—an attack by students of a professor—this should have prompted them to vet it properly for defamation.  The printer’s negligence in this regard was compounded in that it had in fact deleted from the original transcript two lines that implied the University administration were at fault.  This highlighted the printer’s awareness of the potentially defamatory nature of the publication, and proved that it was not merely a neutral conduit of the defamatory material.  In addition, the Judge surmised that, given the printer was also a daily news publisher, it should have utilised its capacity to vet the magazine properly.

The Judge appeared to accept Jensen’s counsel’s suggestion that this was at that time the worst defamation in New Zealand history.  In view of that, the Judge awarded Jensen $30,000 (about $104,000 in 2015) across 13 “claims” – which is assumed to mean that 13 successful causes of actions were pleaded in the statement of claim in respect of the one edition of Nexus.  The Judge seemed impressed by the evidence of Jensen’s many current and former colleagues as to the damage the publication caused to Jensen’s self-esteem and confidence.

Comment

Several aspects of this case are worth discussing.

First, it would seem that Jensen’s claim against the printer would still succeed today.  Although in this case the Judge noted that printers fell outside the common-law defence of innocent dissemination, section 21 of the Defamation Act—which is headed “innocent dissemination”—enshrines legislative protection to “processors”, which section 2 of the Act clarifies as “a person who prints or reproduces, or plays a role in producing or reproducing, any matter” (and, in case you are wondering, section 29 of the Interpretation Act 1999 provides that “person” includes “a corporation sole, a body corporate, and an unincorporated body”).  However, in order to succeed with the defence, the printer needs to prove, among other things, that they did not know “that the matter was of a character likely to contain material of a defamatory nature”, and were not negligent in that regard.  The evidence in this case was that the printer certainly had some idea of the defamatory nature of the edition of Nexus.  Accordingly, liability would still attach under the current law.

By the same token, it appears this case may have significantly influenced Parliament’s express inclusion of printers under s 21.  Indeed, comments by the printer’s counsel—to which the Judge was receptive but distinguished on the facts of this case—in respect on the changing face of the print industry, are illuminating:

[M]odern printing methods and the consequent demand for the production of printed material at speeds which were not even contemplated 20 years ago have changed the role of the printer.  The printer is no longer a compositor engaged in the laborious and perhaps leisurely procedure of setting up type (with every opportunity to acquire in the process some knowledge of what he is committing to print): the modern printer is generally no more than the attendant of machines which, by photo-mechanical processes will in a matter of minutes reproduce in printed form material which has already been assembled and “pasted-up” by the customer.

The Judge aptly described the modern printer to be “a different animal from his predecessors in earlier centuries”.

Secondly, it is noteworthy that Jensen settled his claim against the editor and co-editor, but did not lose his claim against the printer under the joint-tortfeasor rule.  The general rule is that, unless the terms of a settlement expressly provide, if A settles with B in respect of a publication for which C was also in fact jointly liable, A’s settlement with B extinguishes A’s claim against C as well.  The case is thus a reminder for meticulously drafted settlements.

Thirdly, it is curious why the Judge split his award of damages in respect of each “article” within the publication.  It would have been more correct to treat the whole magazine as a single “publication”, and to assess the global damage caused by that publication.  Curiously, the Judge said it was “desirable, if not essential, that there should be a separate award in respect of each of the defamatory items separately pleaded in the statement of claim”.  It is clear this does not accord with contemporary practice.

Fourthly, in respect of the damages awarded, the Judge appeared to take into consideration also the harm caused to Jensen’s reputation by the earlier publication in 1974.  Indeed, certain colleagues of Jensen gave evidence only in respect of the damage caused by that publication.  Strictly speaking, any damage caused by the prior publication should have been ignored totally, in view of the earlier settlement reached.

Finally, when awarding damages, the Judge suggested that in very few cases in New Zealand had an award over $20,000 been awarded.  He referred to a case in 1959 where $22,000 was purportedly awarded to a Cabinet minister in respect of corruption allegations.  It is obvious the Judge was referring to Holloway v Truth [1959] NZLR 1121, but in fact in that case the plaintiff was awarded £11,000 (New Zealand replaced the pound with the dollar in 1967), which in 1982 was approximately $145,000… Was Jensen shortchanged?