Source: Radio New Zealand
Labour leader Chris Hipkins speaks to media about social media posts made by his former partner. Marty Melville
Explainer – It’s election year, and attacks are already starting to fly. What happens if comments about a politician cross the line?
While politicians – deservedly or not – come in for equal-opportunity bashing all over social media, their privacy and rights are just the same as anyone else’s, in theory.
The issue of privacy vs public office sparked up again in the recent storm over posts on social media by Labour leader Chris Hipkins’ ex-wife.
Last week, Jade Paul made a series of since-deleted posts on Facebook of claims about her relationship with Hipkins. The claims did not relate to any unlawful activity.
Hipkins told 1News he had sought legal advice over “the potential publication of things against me, allegations against me that are just untrue”.
“Everybody seems to be piling in on social media, in particular, and a lot of that is just absolute fabrication. It is just no basis in fact whatsoever.”
Can a politician sue for defamation?
Yes. But they may have a higher burden of proof than other defendants when it comes to proving their case.
“Politicians are defamed online a lot but there isn’t a constant stream of defamation proceedings,” said Nathan Tetzlaff, a senior associate at Auckland law firm Smith and Partners.
“The reality is that in all but the rarest and most serious cases, for a politician, making a defamation claim is less productive than the alternatives.”
Defamation law is complex, but it offers people a way to push back against false publicly published statements that they feel have harmed their reputation.
“The law of defamation does not distinguish between different plaintiffs,” Wellington media lawyer Steven Price said. “It applies equally to all.”
The burden of proof is on the plaintiff. Defences against defamation can be that the statement was truth, honest opinion or given with the complainant’s permission.
“Even if a statement goes too far and can’t be proved true or an honest opinion, there may be another layer of protection,” Tetzlaff said. “The law recognises the defence of ‘qualified privilege’ in a political context.”
Statements made in Parliament also have a unique defence, called “absolute privilege”, meaning they are typically shielded from defamation actions.
There’s also now a defence that can be used against defamation claims called “responsible communication in the public interest.”
What does ‘responsible communication’ mean?
“It means that people – journalists as well as people on social media – can defend themselves even if they’ve published untrue and harmful statements about a politician (or others), if they can show that they were discussing something of public interest and they had behaved responsibly in preparing the publication,” Price said.
Of course, that benchmark can vary from case to case.
“A lot rides on what a court decides is responsible. It’s not entirely clear what it means. But it will usually involve taking reasonable steps to verify information before publishing it, and may involve putting that information to the person being criticised first.”
Judges typically have to walk the line between freedom of speech and protecting people.
“To avoid chilling public discussion of politics, judges will try to find a balance between protecting legitimate criticism of political figures or their policies, and allowing people to get away with making false and unsubstantiated personal attacks,” Tetzlaff said.
Christopher Luxon and Chris Hipkins. RNZ / Samuel Rillstone
They’re public figures. Can’t you just post whatever you like about a politician?
Politicians are people too, and have the same protections against online (and offline) harassment or threats.
“Public figures do experience a higher level of scrutiny and criticism. However, that doesn’t mean anything goes,” said Netsafe CEO Brent Carey.
“Political speech isn’t exempt from harm. Content can cross the line where it involves harassment, threats, hate speech, or coordinated abuse.”
Of course, politicians learn to expect impassioned reactions from the public, Tetzlaff said.
“Politicians are expected to be thick-skinned so statements made in the ‘rough and tumble’ of political discourse may not be considered defamatory if they don’t allege dishonourable or dishonest motives.”
What’s the down side of suing for defamation?
For one, it may give more air to claims doing the rounds.
“It will usually draw more attention to the allegations,” Price said. “Some people will delight in spreading them, and social media makes that easy.”
If opponents spread falsehoods during an election campaign, it could be difficult to get any legal redress in time.
“In a practical sense, political life moves faster than the courts, so any judgment would arrive well after the damage is done,” Tetzlaff said.
“There are lots of other reasons politicians might decide not to sue,” Price said.
“They may have relationships with journalists that they need to preserve. They don’t want to be seen as thin-skinned or heavy-handed. There may be defences in play that make a lawsuit risky.
“Good PR advice might be to deal with it and move on.”
How often have suits happened?
There have been plenty of times New Zealand politicians have sued for defamation in the past – or been sued.
One particularly notable case was former Prime Minister David Lange, who sued for defamation after a 1995 article in North & South magazine that suggested he had been too lazy for parts of the job. After several years, the Court of Appeal ruled in the case of Lange v Atkinson that journalists had a defence of “qualified privilege,” and that they could criticise politicians on the basis of “honest belief”.
“Historical examples, including David Lange’s unsuccessful action against a journalist, illustrate that even serious-sounding claims can fail where the court considers the publication to be opinion, fair comment, or part of legitimate public debate,” Tetzlaff said.
“The Lange case went on for years and ended up with the courts creating a new defence that undermined his lawsuit,” Price said. “On the other hand, Robert Muldoon is said to have brought 18 defamation cases and won 15 of them.”
New Zealand First leader Winston Peters lodged defamation proceedings in 2017 against then-Mediaworks morning TV host Mark Richardson over comments Richardson made about him.
Former Conservative Party leader Colin Craig also took up numerous unsuccessful defamation claims over sexual harassment allegations.
It’s harder for politicians to sue these days, as it probably should be, Price said.
“Colin Craig probably does not look fondly on his experiences with defamation law, though he had some successes.”
“The main change is that the key question has moved from ‘is it true?’ to ‘was it responsibly published?’ which is a tougher and more uncertain standard for politicians mulling a defamation stoush.”
Politicians like former Prime Minister Jacinda Ardern and her now husband Clarke Gayford faced frequent attacks online. RNZ / Dom Thomas
Politicians from all sides of Parliament have also faced comments that escalate into abuse and threats, such as former Prime Minister Jacinda Ardern. In 2018, Ardern’s partner Clarke Gayford engaged lawyers to deny rumours that were circulating about him being under police investigation, which police also denied.
Former Green MP Benjamin Doyle, New Zealand’s first non-binary MP, resigned from Parliament last September, calling it a “hostile and toxic place”.
They had resigned citing concerns for their well-being after death threats and abuse. New Zealand First leader Winston Peters and others had amplified social media posts about Doyle’s personal social media accounts.
“Social media is not held to a different standard so defamatory statements made on social media are actionable,” Tetzlaff said.
Could Doyle have sued for defamation over some of the comments made online?
“I can’t speak generally because it depends on the wording of the particular posts,” Price said.
“Some may be protected under a defence of honest opinion, for example. Some struck me as pretty extreme, and I think it would be hard to defend those with defences of truth, honest opinion, or responsible communication.”
Tetzlaff said many social media posts can fall in the grey areas of opinion, insult or hyperbole rather than actionable fact.
Former Green MP Benjamin Doyle. RNZ / Samuel Rillstone
If you’re standing for office this year, what can you expect?
Candidates do have recourse over false information, Carey said.
“Candidates can report harmful content to platforms, and make a complaint to Netsafe under the Harmful Digital Communications Act.”
Under the Harmful Digital Communications Act, online content or messages that intentionally causes severe emotional distress can be illegal.
“Netsafe can assess the situation, work with platforms, and support resolution. If there are threats or safety concerns, it should also be reported to police.”
Netsafe has also worked with the Ministry of Women to produce a “Free to Lead” Toolkit aimed to support women in public profiles who typically face the highest rates of abuse.
Political passions are sure to boil over in the months before November’s election, but Carey cautioned that it’s still best to think before you post a particularly hot take that might cross the line.
“Sharing content that is abusive, misleading, or designed to cause harm can still breach platform rules or New Zealand law,” he said.
“A good rule of thumb: pause before sharing – if it targets a person in a way that could cause harm or spreads false information, think twice.”
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand