“[W]e consider it is again time to strike a new balance by recognising the existence of a new defence of public interest communication that is not confined to parliamentarians or political issues, but extends to all matters of significant public concern and which is subject to a responsibility requirement.”

— French and Winkelmann JJ in Durie v Gardiner [2018] 3 NZLR 131 (CA) at [56].

The essentials

What is RPIC?

Responsible Public Interest Communication.  This is the new common-law defence recognised by the Court of Appeal in 2018.

The full name of the defence is a bit clunky, which has led some lawyers—and even some judges—to shorten it to ‘Public Interest Communication’.  But we find this truncated name unhelpful because it pulls attention away from what will normally be the element on which the defence hinges: whether the communication was ‘responsible’.  So, we prefer RPIC.

What is the test?

The name gives it away.  To displace liability, a defendant must establish two elements:

• the communication sued upon was a matter of public interest; and
• it was communicated responsibly.

What amounts to a matter of public interest?

This really means a matter of “public concern“.  This is to be distinguished from things that the public might simply find interesting or titillating.

The Court of Appeal said this element would be established if the defendant could show that the subject matter was “one inviting public attention, or about which the public or a segment of the public has some substantial concern because it affects the welfare of citizens, or one to which considerable notoriety or controversy has attached”.

Importantly, the Court also said that the focus should be on the publication as a whole; it is not necessary to find a separate public-interest justification for each item of information.

Further, it is not necessary for the plaintiff to be a public figure or for the publication to relate to political matters.

How does the Court assess whether the communication was responsible?

This is the more juicy part of the defence.  The Court of Appeal said relevant circumstances would include:

• The seriousness of the allegation – the more serious the allegation the greater the degree of diligence to verify it.
• The degree of public importance.
• The urgency of the matter – i.e. whether the public’s need to know required the defendant to publish when it did, taking into account that news is often a perishable commodity.
• The reliability of any source.
• Whether comment was sought from the plaintiff and accurately reported.
• The tone of the publication.
• The inclusion of defamatory statements which were not necessary to communicate on the matter of public interest.

How has the defence been applied since it was recognised?

In the few cases where the defence has been considered in a substantive context, the public-interest component has not proved too difficult to satisfy.  In view that the test concerns only the subject-matter of the allegations contained in a publication—and importantly not their merits—it might be said that most prima facie defamatory publications will meet the test, especially where they concern allegations of misconduct which, if they were true, could affect or be of legitimate concern to a number of people in the community.

As anticipated, where the ‘rubber has really hit the road’ has been defendant’ ability to establish the responsibility criterion.  While the Court of Appeal in Durie v Gardiner emphasised the above bullet-pointed circumstances to be only a non-exclusive list of considerations a Court might consider, it is not surprising that they have become a focal checklist.

We are yet to see a jury trial proceed with RPIC at issue.  It will be interesting when this occurs because the Court of Appeal held that both the public-interest and responsibility criterions would be determined by the trial judge, but the jury would still have a role to play in the finding of relevant facts.  So, a jury might be asked to deliver verdicts on such questions as: “Did the defendant fairly and accurately report the plaintiff’s position on the allegations?”  The trial judge would then presumably determine the responsibility criterion of the defence in light of the jury’s answers.  That said, some of the responsibility considerations would seem to fall into that grey space between questions of law and subjective value judgments, such as whether the inclusion of defamatory statements were necessary to communicate the matter of public interest, and the degree of public importance in a story.

Masterclass

Legal practice tips

For publishers:

• While the Court of Appeal stressed that the defence was not simply one of ‘responsible journalism’, in that it was open to all defendants accused of defamation, it is difficult to square the considerations of the responsibility criterion with a run-of-the-mill defamatory Facebook post or press release.  Whatever the Court of Appeal’s intentions, we think the defence is still more likely to be a mainstay of journalists and perhaps quasi-journalist bloggers, rather than other types of defendants.
• For journalists and editors, the defence should not be seen as a sheet anchor for a defamatory publication.  Safeguarding defences of truth or honest opinion should still be one’s focus, because in Court the degree and nature of inaccuracies published are likely to have a strong bearing on the Court’s consideration of the responsibility criterion.
• It follows that journalists and editors who take care to ensure compliance with with Media Council guidelines and BSA principles are more likely to find their publications protected by the defence.  Indeed, it would be a bizarre case where a particular publication was found by the BSA to have breached broadcasting standards of say, fairness, yet could be considered to have met the responsibility criterion under the defence.
• Unlike qualified privilege, the defence won’t be lost simply because the author had a dominant improper motive to publish the story.  That said, it stands to reason that an author who is, for instance, driven to write a story out of ill-will towards their subject, is less likely to adhere fairness and responsibility.  One’s venom might translate in gratuitous inclusions, overstated criticisms, and reliance being placed on shakier sources.  In a perfect world, the story would be left to another person to write and publish.  But sometimes this isn’t possible or practicable, whether through staff constraints or perhaps where one journalist’s knowledge on a subject far exceeds anyone else’s.  At the very least, editors should demonstrate more oversight in any story where there is a reasonable possibility a plaintiff might call the journalist’s agenda into account.  Moreover, this demonstration should be visible in clear and contemporaneous records that can be relied on in Court.
• Although a failure to seek comment from the plaintiff has been held not to be decisive, such cases are likely to be rare.  Perhaps balancing the story with some competing views of third parties, if not directly the plaintiff, will help.
• Invasion of privacy and breach of confidence also provide for a defence of public interest.  But whether the public-interest component prevails will likely depend on whether the public interest outweighed the particular private interest at issue; whether that is reputation in defamation, dignity and autonomy in privacy, or confidentiality in breach of confidence.  For example, the publication of a confidential document might well be justified in the public interest under breach of confidence, but naming the person who authored or authorised it might not be.  For the defence of RPIC, perhaps it would be wise to always critically assess whether—and to what extent—the public interest in whatever information is to be published, outweighs the reputational interests of the potential plaintiff/s.  (We can already see editors nodding, “It sure does.“)

For litigants:

• Although the defence will clearly complicate jury trials where it is raised, the High Court has already held that simply raising the defence does not mean a judge-alone trial is inevitable.
• Even where a defence of RPIC looks weak, because it concerns such an intensely factual enquiry, strike-out prospects are extremely limited.

Recommended reading

• Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131 (Court of Appeal)

For obvious reasons, this is essential reading.  The whole judgment should be read.

• Lee v Lee [2018] NZHC 3136 (High Court)

For the clearest application of the new defence in a case brought against a media defendant.  This demonstrates the relative ease by which the public-interest criterion may be established, and how the Court of Appeal’s bullet-pointed circumstances by which the responsibility criterion are assessed, are applied as a virtual checklist: see paragraphs [175]–[197].

Now all we need to do is tick off the remaining defences, and we can then have a look at the remedies available in defamation.