Reality and Myth: The New Zealand Media and the Chilling Effect of Defamation Law

In 2001, I began the field work in an empirical study of the laws of defamation in New Zealand. This study involved a comprehensive mail-out survey of the New Zealand media, and an adapted survey of defamation lawyers, which were designed to discover how the laws of defamation affected both groups, and what the respondents thought about those laws. The survey was augmented by an extensive search of defamation court files in the most important New Zealand High Court registries. The question behind the survey was essentially whether New Zealand’s defamation laws have a chilling effect on the media, to the extent that stories which should be told do not see the light of day. In this thesis, I contextualise and report on the results of the survey. I first describe and analyse the sources and trends in current defamation law, the other forms of regulation of the media in New Zealand, and the patterns of media ownership. I go on to utilise background data from the survey to present a character and business profile of the media who responded to the survey and find the data confirms the representative nature of those respondents. I then complete contextualisation of the survey by analysing the nature of the chilling effect doctrine itself, a canon which began as a predictive theory importing sociological concepts into legal analysis, but which is now a doctrine applied somewhat inconsistently, but with substantive effects, by the courts. In the following chapters I present the results of the media survey, the court file search and the survey of defamation lawyers, both in narrative and graph or tabular form. My tentative initial finding, that New Zealand’s defamation laws do not have an excessive chilling effect on our media, although they do have some, is progressively confirmed, with each set of data appearing to mirror and corroborate that which went before. In the final chapters, I take this somewhat surprising finding and augment it by theorising about future developments in defamation law. I suggest that increased constitutionalisation of this area of private law, in the form of full incorporation of a Bill of Rights methodology, is both desirable and necessary to protect against any chilling effects, such as they are. I conclude by posing a question about a possible joint future for defamation and privacy claims