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Does the public interest defence work?
By Steven | November 9, 2026
Mark Hanna’s recent article in the NZLJ “Defamation across the ditch” [2026] NZLJ 252, raised my eyebrows.
He looks at the new public interest defence to defamation established in Durie v Gardiner, and finds that “defendants cannot rely on it with confidence.”
Now, I like Mark, and I rate him. He’s a senior lecturer at Canterbury’s law school, and he’s done very valuable work on SLAPPs (Strategic Lawsuits Against Public Participation – basically attempts to gag important speech, often by big corporations trying to shut down criticism).
But I want to push back against this conclusion. You can call me biased: I was one of the lawyers in Durie, and an odd feature of that case is that both sides were arguing in the Court of Appeal for more or less the same defence.
My reading of the cases, and my experience, is that the defence works pretty well. I’ll say a bit about why, but I’d be interested in anyone else’s two cents’ worth on this, because it’s an important defence, and if my experience is any guide, media lawyers are often called on to give advice about it.
What is this defence?
The defence is supposed to support publications that are about matters of public interest, very widely defined, that are prepared “responsibly”. That is, the courts have decided that some errors are acceptable, even if they wrongly smear someone’s reputation, because we want to encourage – not punish – speech on important things that can be shown to have been prepared responsibly. Obviously, “responsibly” is doing a lot of work here. The courts have set out factors to help us work this out: how damaging was it? how thoroughly was it checked? Was the source reliable? Were the allegations put to the person criticised for comment? That last one is regarded as particularly important.
Mark’s concern is that these factors have become something of a checklist. If a judge finds a publisher has failed to satisfy just one factor, then the defence is lost. He’s particularly worried that too much weight is put on that last factor – seeking the other side, because “seeking comment often adds nothing to the fairness or accuracy of a publication”.
Mark’s cases
Mark cites four cases and in three of them, the defence failed. On the face of it, that’s not a very good track record. It tends to support his critique.
One of them is Cato v Manaia Media. I’ll spare you the details of that weird, complicated case, but I’m going to score it in Mark’s favour. The High Court did kind of treat the factors as a checklist and failed the publisher on five grounds. The Court of Appeal corrected that, but then dinged the publisher on one ground – and one that could be regarded as somewhat picky, at that.
But I don’t think the other two cases prove his point. In Lee v Lee, the defendant – the publisher of a Korean newspaper in NZ with a large circulation, said in court that he didn’t think it was his job to seek comment before making damaging allegations unless he wanted to. In the other case, Craig v Slater, notorious blogger Cameron Slater admitted at trial that he’d exaggerated facts, relied on someone he described as an “idiot”… “he’s probably got a complete clown suit in his wardrobe”… “I take anything [he] says with teaspoons of salt”, took no steps to verify his allegations, and didn’t put them to Mr Craig before publishing them.
So… this is not a defence that should protect either of these people. The fact that it didn’t is just the defence working as it should.
Mark also refers to Christian v Bain, but doesn’t discuss it much. In that case, the plaintiff’s lawyer Chris Patterson assiduously compiled a list of all the things the journalist (and his key source, who arguably was working with the journalist) did wrong or should’ve done but didn’t. It’s a long list. Applying a checklist approach, the defence surely would have failed. But the judge, after a careful examination of the facts and all the circumstances against the Durie factors, found the journalism to be responsible. This was upheld on appeal. For my part, I found it convincing. But for present purposes, it at least shows that the courts will not always be throw out the defence just because of some fault in the reporting.
To be fair, Mark’s not saying the defence always fails, just that it’s unreliable.
Some other cases
The responsible communication defence succeeded in a couple of other cases, which may have been too recent to make Mark’s deadline. One is Julian Bachelor’s case against TVNZ; the other is Talley’s case against TVNZ. The Talley’s decision is, I think, strange, and while it upheld a responsible communication defence for one of the allegations, I don’t think it really sheds much light here. But TVNZ’s defence deserved to succeed in Bachelor, and did.
There are also a couple of injunction applications where the responsible communication defence was raised, and played a part in the courts’ refusal to stop the publications. Good.
My own experience
I have often given advice that centres around this defence. For publishers, I’m suggesting they create a paper trail of responsible journalism, aligned to the Durie factors, that will stand them in good stead if it turns out that the reporting is wrong. I usually find that the guidance in Durie points reasonably clearly to what needs to be done. It tends to line up with what ethical journalists are doing anyway. When I see that falling into place, I feel fairly confident that it would provide a foundation for a good defence if challenged. And when it works… there’s no lawsuit.
Perhaps the fairly small number of defamation lawsuits in nearly ten years since Durie (against mainstream media anyway, and in circumstances where it can be expected they’ll raise the defence) is an indication that the defence is working well.
Upshot
It is always possible, as a plaintiff’s lawyer, to think of things the media should have done better. You can always try to find some reason to argue that the story is irresponsible. Another check that could have been made. A peripheral allegation that wasn’t properly put. A degree of bias in a source. A fact that went unreported that may or may not be significant. There’s a danger that Durie could be weaponised to attack journalism, and if the courts buy into those arguments too readily, that could undermine the whole defence. But I’m not seeing much evidence of that.
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