Judith Collins is threatening defamation action against those who accuse her of leaking. But I thought you could say anything you wanted about MPs?

Just a very quick note on the announcement by Judith Collins that she will sue Trevor Mallard, Andrew Little and Radio NZ for defamation ... mainly because I've yet to see any commentary by those who ought to be talking about it ... and yes, Steven Price and Graeme Edgeler, I am looking at you.

First up, I don't know why she is going after Radio NZ. Yes, it did broadcast the allegedly defamatory comments by Mallard and Little. But it did so in the course of live-to-air interviews, not as part of edited news reports. So to seek damages from them just for being the medium by which the allegedly defamatory claims were made seems like shooting the messanger ... which has a pretty chilling effect on those organisations that carry live-to-air interviews.

I mean, what was Radio NZ meant to do here - refuse to allow Labour MPs to comment on this issue in case they say things that might be defamatory? Is that really the sort of news media Collins wants to see? One that either doesn't carry political interviews at all, or which only does so by way of pre-recording and screening?  

Second of all, there's been some on-line discussion as to whether the Court of Appeal's decision in Lange v Atkinson will work to protect Mallard et al if they have said Collins was responsible for the leak (and it turns out she wasn't). (I note that I'm not sure Mallard et al have said this - but I haven't looked closely enough at all the comments made in the various Radio NZ appearances to pass conclusive judgment.) This has to do with the defence of "qualified privilege" that the Court created as follows:

Our consideration of the development of the law leads us to the following conclusions about the defence of qualified privilege as it applies to political statements which are published generally:

(1) The defence of qualified privilege may be available in respect of a statement which is published generally.

(2) The nature of New Zealand’s democracy means that the wider public may have a proper interest in respect of generally-published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.

(3) In particular, a proper interest does exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.

(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.

(5) The width of the identified public concern justifies the extent of the publication."

I think it's pretty clear that the importance of this issue justifies public comment - so it is an occasion to which qualified privilege attaches. However, it is important to note the word qualified here - the legal protection given to those who publicly say things about MPs regarding matters of general concern relating to their ability to do they job is not absolute. Only comments made inside the House attract that level of protection. And so the Court stated that the legal protection that qualified privilege provides will be lost "if the defendant takes what in all the circumstances can fairly be described as a cavalier approach to the truth of the statement."

The Court then goes on to detail what may lead to such a loss of the qualified privilege defence:

[48] No consideration and insufficient consideration [of the truth of the claim] are equally capable of leading to an inference of misuse of the occasion [of privilege]. The rationale for loss of the privilege in such circumstances is that the privilege is granted on the basis that it will be responsibly used. There is no public interest in allowing defamatory statements to be made irresponsibly - recklessly - under the banner of freedom of expression. What amounts to a reckless statement must depend significantly on what is said and to whom and by whom. It must be accepted that to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination, may in some circumstances come close to a need for the taking of reasonable care. In others a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion and to avoid any inference of taking improper advantage of the occasion. 

[49] A case at one end of the scale might be a grossly defamatory statement about a Cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules. It is not that the law values reputation more in the one case than the other. It is that in the first case the gravity of the allegation and the width of the publication are apt to cause much more harm if the allegation is false than in the second case. A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred. Responsible journalists in whatever medium ought not to have any concerns about such an approach. It is only those who act irresponsibly in the jury's eyes by being cavalier about the truth who will lose the privilege.

So, whether or not the Lange v Atkinson qualified privilege defence applies (provided there have been defamatory statements made, of course) depends upon the basis for Mallard's and Little's claims about Collins involvement in the leak of Pullar's name. 

Right - over to comments. But please remember, there are threats of defamation flying around here and so rather than risk becoming a test case, I will exercise editorial discretion on anything I think opens me (and the site) to expensive legal fees.