Friday, September 24, 2004

Freedom of Speech and Defamed Politicians

Auckland mayoral hopeful Dick Hubbard is to sue the NBR for their attempted "hatchet job" on him. Kiwipundit thinks this is dreadful and sees it as a threat to press freedom.

Imagine what would happen if every politician who was ever defamed by a media outlet decided to sue. No newspaper would risk printing negative stories about politicians, at least not about ones who were rich enough to afford good lawyers.

I am not an NBR reader and, living south of the Bombay Hills, did not receive an anonymous copy of the article in my letter box. I am not, therefore, qualified to discuss the specifics of this case. I happily leave that to the jury. What I take issue with is the suggestion that politicians should not be allowed to sue for defamation.

Western democracies, some more than others, value freedom of speech. The USA has the strongest possible protection in law with the first amendment to the constitution stating that "Congress shall make no law ... abridging the freedom of speech" although freedom, in practice, is less absolute than the simple wording might suggest. Yet the USA (like all other Western democracies) has similar defamation laws to New Zealand. If any person (including the press) publishes defamatory lies about any other person then they will be liable to pay damages.

Defamation laws are as likely to be a defence against repression as a vehicle of it. At the height of the McCarthyist era John Henry Falk brought a successful libel case against a vigilante organisation that had blacklisted him not because of his politics but because (in the best witchfinding tradition) he had opposed their blacklist. The libel case allowed the alleged facts to be properly investigated and they established that

(1) John Henry Falk was not a communist or communist sympathiser (whether that should have mattered is not the point)
(2) AWARE knowingly and maliciously set out to destroy his career with a pack of lies

These facts would have remained matters of public conjecture had it not been for the defamation case.

Defamation suits have long been considered the appropriate way to defend one's reputation and failure to sue was often considered an admission that the defamation was true. In 1976 Jeremy Thorpe was accused of a homsexual relationship (probably true) and of trying to murder his ex-lover (less probable). He was then forced to resign as leader of the British Liberal Party (it was 1976). In fact, the main reason for the forced resignation was that he refused to sue for defamation. His party felt (probably correctly) that this refusal "proved" the truth of the homosexual affair - and even if it didn't the voters would see it that way.

In bringing a libel suit Dick Hubbard exposes his personal character and his record as a businessman and employer to searching public scrutiny. He presumably knows that - if he didn't his legal advisers will have told him. Perhaps his willingness to be cross-examined suggests that his record really is clean and that the material in the NBR article(s) really is false. At the very least let's suspend judgement until the court case.

Some commentator's have wondered whether Bush could sue Michael Moore over Fahrenheit 911 (or what about CBS over those memos). He could. It wouldn't be great tactics at this stage of the campaign but how about after the electon? If, however, Bush were to sue he would have to show (at least on balance of probability) that the alleged facts were untrue. In practice, he'd have to deny the charges on oath and subject to cross-examination. He'd have to tell us exactly where he was during those National Guard years and exactly when and why he didn't take those medicals. For my money he won't sue. And neither will John Banks (though I'm not sure who he would be suing for what).

The final argument is that the press should have a licence to print untruths in case they (like CBS) were caught with a story they thought was true but turned out not to be. NZ Law already provides protection for media (or anyone else) who act in good faith on matters of public importance. Lange v Atkinson established a defence of qualified privilege for a journalist publishing falsehoods that they genuinely believed to be true unless they act "maliciously" or with a "reckless disregard" for the truth. It may be argued that the limits of how much checking a journalist needs to do or how "reasonable" their belief must be is as yet inadequately tested in case law but that is an argument for clarifying the current law, not disallowing a politician's right to sue, or decrying those brave enough or wronged enough to try.

Kiwipundit has updated his post responding to this post. He raises two legitimate (although not entirely new) points. That journalists should not be forced to disclose their sources and that a wealthy candidate might use his wealth to intimidate other less well-heeled candidates as well as professional mainstream journalists. The first point (non-disclosure of sources) is viewed sympathetically by the courts and a journalist will be able to testify that they relied on an (undisclosed) source and to the steps they took to check the story in establishing a defence of qualified privilege. They may also subpoena any relevant witness or document if they use a defence of truth. Further a politician's right to sue for defamation is limited to allegations of fact - we may call John Banks an overbearing bully or Dick Hubbard a sanctimonious waffler with impunity.

The issue of money is a much wider one. Arguably we can never have true justice when one party to a dispute cannot seek redress (or defend themselves) without incurring ruinous expenses. Certainly any move which reduces the cost of justice to individuals is to be applauded. But there are significant balancing factors with political libel. If a politician were seen to use a vexatious libel suit to intimidate a poorer opponent or (worse) an impecunious citizen blogger the public would likely react by
(1) contributing generously to the opponent's defence fund
(2) wreaking an appropriate revenge on polling day

Dick Hubbard did not sue a defenceless orphan. He sued a mainstream newspaper which has the means to contest his action, has probably profited significantly from the relevant articles and certainly has the resources and clear duty to get its facts right.


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