Time to lose the libel laws

In Auckland last week, Joe Karam, a former New Zealand international rugby player, was awarded $535,000 plus $500,000 of legal costs in a highly publicised defamation case, making it one of the largest defamation awards in New Zealand history. But while this may be a legal victory for Karam, we should be concerned by this ruling. As with all defamation cases, the Karam case raises important questions around freedom of speech and democracy, and what we are allowed and not allowed to say in public.

The Karam case, heard by a single judge in Auckland High Court, was brought against two men who were accused of launching an ‘all-out assault’ on Karam’s reputation because of his support for David Bain, a convicted murderer. Bain was convicted of murdering his entire family, including his father Robin, in 1995. His conviction was later quashed by the Privy Council before he was finally acquitted following a retrial in 2009.

Karam, who championed Bain’s fight to clear his name, sued Kent Parker and Vic Purkiss over statements made on the Facebook Justice for Robin Bain page and the Counterspin website in 2010. The comments alleged that Karam was dishonest, lacked integrity, only supported Bain for financial gain, and had defrauded the legal-aid system.

In her ruling, Justice Courtney identified 50 defamatory statements published on Facebook and Counterspin by Parker and Purkiss. Some of the remarks compared Karam to a Nazi leader, and one used his name to coin a word, ‘Karamalisation’, which described how he allegedly misrepresented facts. Justice Courtney accepted Karam’s claim that the public campaign against him was the ‘worst four years’ of his life and that ‘few aspects of Mr Karam’s reputation were left untouched’. In awarding costs and damages, she also ordered that all defamatory messages be removed from Facebook and Counterspin.

This isn’t the first defamation case brought by Karam. Prior to his case against Parker and Purkiss, Karam had already successfully sued publishing house Fairfax and the Sunday Star Times for defamation. The case against Fairfax was settled out of court and the Sunday Star Times was forced to publish a full apology for printing an article in 2009 which drew attention to Purkiss and Parker’s claims and provided a link to the Counterspin website.

These legal victories and out-of-court settlements are to be expected under the current defamation laws in New Zealand. The problem is that these laws are still largely based on the old English legal definition of defamation, where individual reputation matters more than public freedom. A defamatory statement is presumed to be false unless the defendants can prove otherwise. As such, those sued for defamation are effectively presumed to be guilty, and so the onus is on them to prove their innocence. This can prove extremely difficult, which is why most defamation cases in New Zealand and the UK find in favour of the complainant.

Under English and New Zealand law, statements that harm someone’s reputation are automatically assumed to be defamatory. (Although it is worth remembering that as part of the Defamation Act 2013, claimants in England and Wales now have to show evidence of a statement causing serious harm before it can be considered defamatory.) US law, by contrast, privileges freedom of speech and freedom of the press over the reputation of individuals. So even when public figures are subjected to reputational injury – including great injury – free and open discussion is still allowed to continue, because of its importance to society and to public life.

This year marks the fiftieth anniversary of the US Supreme Court’s decision in the libel case of New York Times v Sullivan, which effectively destroyed defamation and libel law in America. The impact of the Sullivan decision was to rewrite American defamation law forever. Pre-Sullivan, many American states subscribed to the age-old definition of defamation and libel: ‘Where the words published tend to injure a person libelled by them in his reputation, profession, trade or business… or tend to bring the individual into public contempt, they are libellous per se.’ Post-Sullivan, US law defends the right of the people and the press to be not only critical of public officials but, more importantly, it defends the right to be wrong, that is, the right to publish inaccuracies and untruths. These protections apply as long as these mistakes have not been made with reckless disregard for the truth or with malice towards the person under discussion.

So if the Karam defamation cases against Purkiss and Parker and Fairfax had been brought before an American court, it is unlikely Karam would have been successful, regardless of whether what they printed was true or false.

Moreover, the Karam case was never put before a jury. Instead, it was heard before a single judge. In England, single-judge hearings, encouraged as part of the 2013 Defamation Act, are something that libel reform campaigners in the UK have applauded on the grounds that they reduce costs. But here’s the thing: juries should always be involved in charges of defamation. Defamation cases often involve questions about what given words mean and whether someone can legitimately claim that their reputation has been damaged. These issues are best decided in reference to social norms and attitudes. A jury is therefore better able to reflect these norms and attitudes because it is made up of the people who create them: the public. As such, the public has a significant stake in the outcome of defamation cases given any judgements passed can often have profound consequences, such as closing down newspapers, magazines and websites.

The fact that cases of defamation can be decided by a single judge signifies an important curb on public involvement in setting the boundaries for free speech. Defamation laws not only limit our individual freedom of speech; they also inhibit the freedom of the press, making it risk-averse and super-cautious for fear of being sued. The best remedy for erroneous comments and even for slurs and lies is not illiberal defamation laws, or jury-free rulings by a single judge; rather, it’s more speech and more public debate.

Theresa Clifford is a digital strategist currently based in Auckland. Visit her website here. Follow her on Twitter @TheresaClifford.