Responsible Public Interest Communication.  This is the 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.

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

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

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

When considering whether a communication is of public interest, the focus is on the broad subject-matter as a whole.  It is not necessary to find a separate public-interest justification for each item of information. 

Allegations within a publication do not fail to be of public interest simply because they are factually false.  Indeed, the defence is predicated on the allegations being false (for otherwise truth would be the apposite defence).  

A matter is capable of being in the public interest whenever a segment of the public has a genuine stake in knowing about it. The concept extends well beyond public figures, politics and government, and may include sport, business, public institutions, companies, environmental issues and other matters affecting the community (or even a particular community).

The High Court has found that, where a communication conveys knowingly false allegations, this does not serve the public interest.  Equally, publishing known falsities will usually signify an irresponsible communication.

This is usually the main battleground for the defence.  The defendant bears the onus of proving that it acted responsibly.

The central inquiry is whether the publisher can show that, pre publication, it carried out a sufficiently diligent verification process.  The level of responsibility required may depend on the context, including the nature of the publisher, the size of the audience, the seriousness of the allegations, and the potential reputational harm.

The main criteria for consideration (sometimes called the “Durie factors” or “Durie criteria”) are:

• 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.

In assessing the defence, the Court invariably traverses these criteria, while noting they are not a rigid checklist.  Rather, the Court is supposed to evaluate the criteria flexibly, recognising that not every consideration will be relevant in every case, and allowing for an appropriate degree of editorial judgment, especially in cases involving professional writers and editors.

Flowing from the caselaw, the following observations can be made of the criteria:

Seriousness of the allegation: The more serious the allegation, and the greater the potential reputational harm, the more extensive the verification expected.  Serious allegations may require careful cross-checking of source material, corroboration where available, consultation with relevant industry or subject-matter experts where appropriate, and heightened scrutiny of anonymous or confidential sources.

Public importance: Heightened public interest may be a double-edged sword.  On one hand, it may more strongly warrant publication of the allegations at issue.  On the other hand, it may warrant increased verification efforts.

Urgency: Urgency may justify earlier publication, particularly during fast-moving events such as election campaigns.  However, urgency and/or commercial imperatives do not remove the obligation to verify allegations.

Reliability and verification of sources: Diligent verification is the heart of the defence.  Courts closely examine the steps taken before publication, including:

• the reliability of sources (e.g. whether the source had an axe to grind, and if so, how this was managed by the publisher),
• whether allegations were independently corroborated,
• whether documents or datasets were cross-checked (for example, in one case a journalist received a dataset from a source who was known to have an axe to grind, and so obtained another copy of the dataset from a difference source to verify its authenticity),
• whether subject-matter experts were consulted where appropriate,
• the extent of editorial oversight, and
• legal oversight, where appropriate.

• Courts examine what publishers actually did before publication.  Contemporaneous records of interviews, source verification, editorial discussions and requests for comment are often the best evidence of responsible conduct.  Conversely, poor record-keeping may make it difficult to prove that appropriate verification occurred.
• The defence is open to all publishers, and not simply news media. But you will likely improve your prospects the more closely you can follow professional newsgathering practices.  Following the Media Council principles will be a good start.
• For journalists and editors, the defence should not be seen as a sheet anchor for a defamatory publication.   Safeguarding defences of truth and/or honest opinion should still be one’s focus, because the degree and nature of inaccuracies may bear on the Court’s consideration of the responsibility criteria.  For example, the more grossly inaccurate an allegation, the more scrutiny will be applied to the publisher’s verification efforts.
• 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 to 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 into question the journalist’s agenda.  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 is not necessarily decisive, such cases are likely to be very rare.
• Practical guidance emerging from the cases includes maintaining comprehensive records of pre-publication inquiries, documenting editorial decision-making, documenting legal review, and accurately presenting opposing viewpoints.
• If unverified statements of fact are to be published, or if allegations are from confidential sources, it may assist to expressly identify this to readers.  
• It may be necessary to revisit online publications if significant new information later becomes available.  Indeed, an initially responsible publication may become irresponsible if online copies are not updated appropriately.  

• Even where a defence of RPIC looks weak, because it concerns such an intensely factual enquiry, strike-out prospects are extremely limited.
• Although the defence will clearly complicate jury trials where it is raised, the High Court has held that simply raising the defence does make a judge-alone trial inevitable.  Indeed, there have already been two jury trials with the defence at issue.
• In cases with juries, the RPIC defence is, on past experience, likely to be tried in a subsequent trial phase, with further evidence and submissions heard after the verdicts.
• Because the defence is heard separately to the other issues, there may be scope for a publisher to seek summary judgment in an appropriate case (so as to avoid the time and expense of a potential jury trial).

• Expert evidence that simply offers views on the responsibly of publication in the particular case, may be ruled inadmissible.  In other words, some random senior journalist’s reckons are unlikely to offer substantial help to the judge as the fact-finder.

• 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.

• Manaia Media v Cato [2025] NZCA 233, [2025] 3 NZLR 103 (Court of Appeal)

Extensive appellate consideration of the defence by a smaller-scale media publisher.  See [51]–[115].

• Cao v Stuff Ltd [2024] NZHC 44 (High Court)

Consideration of the defence by the judge following a jury trial, including issues of process, evidence, and consideration of the relevant factors.  See [31]–[86].