The data presented above appears to paint a picture of a lively, generally robust New Zealand media which accepts and is aware of the effects of defamation law to a degree. While all media sectors consider they face general risk of defamation claims, and are worried about mistakes, both inadvertent and careless, the specific area of concern common to all was the reporting of commercial and business matters. For newspapers, general risks stood out, while for television, news stories were the most risky. For radio, live broadcast was the most
problematic, for magazines inaccuracy, and for publishers, the subjects of books published, and mistakes, caused most concern. However, as noted, mistakes can be alleviated to a degree by the media taking steps to avoid carelessness where possible, while the Lange v Atkinson defence also offers some relief where care is taken in reporting on political matters but mistakes occur in spite of this.
About a third of the media had no training in defamation law, while two-thirds had some, with an even spread between those who received formal and informal training. Television had a high rate of training, as had magazine journalists, with newspapers not far behind. Book publishers appeared to have the lowest rate of training, which was informal when it was received, which is surprising, given the apparently high risks acknowledged in this sector. It has been surmised that training reduces risk, and adds to the robustness with which media can deal with defamation claims. Therefore, a majority of the media appeared to place themselves in a position to prevent claims occurring and to deal with them realistically when they arose. As to alteration or deletion of material in stories to be published, it appeared the media alters material rather than delete it if possible, and will amend to maintain accuracy and fairness, if required by legal advisers or to tone down opinion pieces. Newspapers identified editorials and letters to the editor as most likely not to be published at all if problematic. Television broadcasters amended material right up to broadcast rather than delete. Radio also sought to amend rather than expunge but found live broadcast problematic. Magazines were more inclined to ‘pull’ material completely if subject to pressure from client advertisers. Book publishers were more risk averse because of the greater financial loss they faced if a publication was injuncted and had to be removed from shelves or destroyed. This data again confirms a generally robust and assertive media which works hard to get stories told. Magazines suffer the effects of a form of commercial ‘chill’ from advertisers, while book publishers can be said to also face a commercial chill arising from the nature of the business they are in.
A large majority of media did not hold defamation insurance. Television and radio appeared to have the highest rate of uptake, at about 50%. The reasons for not holding insurance appear to be the high cost of premiums, and tactical reasons, such as a desire to maintain autonomy when dealing with claims, and to present a tough image to potential claimants. Once again, this data reaffirms an image of a generally robust media.
As to regulatory bodies, the broadcast media appeared to take more notice of, and pay more regard to, the Broadcasting Standards Authority, than did the print media of its self-regulatory body, the Press Council. One of the large television broadcasters was in fact more concerned about the BSA than the risk of defamation. For at least the broadcast media, then, it seemed sources of potential chill other than defamation law might be of greater current concern. Not quite half of all media had received threats of defamation actions over a six year period, and most had received 1-5 threats. However, two-thirds regarded most of the threats as not serious and three-quarters thought the numbers of threats had stayed the same or had actually decreased. Newspapers received the most treats, probably followed by television, then magazines, radio and publishers. Over half of the threats (54%) came to nothing. Where the media capitulated, which was in 45% of the threats, the most common outcome sought and obtained was an apology. Damages were sought in a third of threats but were only paid in relation to 8%. Threats were dealt with at a low level and creatively in some cases. The data indicates that threats are regarded as part of the daily routine of the media and that they are generally not seen as serious, fall by the wayside over half of the time, and are resolved at a low level the rest of the time. Any chilling effect must then arise from the time and cost involved in dealing with these matters. The data on costs received was patchy, but revealed that costs associated with threats did not appear to be high.
As to media experience of actual claims which went to court, 12% of all media respondents reported that claims had been filed against them. Details of 50 claims were collected, the majority of which were filed by ordinary individuals (74%), with corporates being the second most common plaintiff (16%). Newspapers reported details of the most claims, however, it appeared that television broadcasters experienced the greatest rate of filed claims (two-thirds reported experiencing 10-20 writs in the relevant time period, although they did not detail this many comparative to newspapers). This data largely mimicked that collected in relation to threats.
The majority of filed claims arose from general news stories, current affairs or documentaries (64%). The most common remedy sought was damages (74%), while an apology was sought in 20% of the claims. The lowest figure claimed was $2,000 and the highest was $7.5 million. Higher levels of damages tended to be sought from television broadcasters, publishers and magazines.
Just over a third of the total 50 claims resulted in a loss or concession by media. Just under a third of the claims resulted in a win for media or the claim fell away. This means that just under half of the resolved cases resulted in a favourable outcome for media. Where the outcome was unfavourable to media, it was clear that although damages were the most common remedy sought, an apology was the most common remedy actually achieved. Levels of damages awarded were much more modest than those sought, with most awards being below $100,000 and half of them below $50,000. It appeared that costs associated with actions could be high but varied a great deal, and nevertheless tended to be under $20,000. Settlement appeared to invariably involve payment of costs for both parties.
It is clear that the media success rate in relation to threats was higher than for court claims – however, not by much. Media still successfully resisted just under a half of the latter. While damages and costs were also higher for successful court claims than for threats, nonetheless the levels of damages awarded were not outlandish, and apology was the most common remedy achieved rather than damages. Not unexpectedly, then, court claims were more serious for media, though not as serious as might be predicted to support a pervasive chilling effect. The overall impression arising from this data was still, I believed at this point in the study, of a dynamic, healthy media, coping well with the restrictions imposed by the law. It was with great anticipation, then, that I turned to consider the results of the court file search, to determine whether my conclusions from the first part of the media survey were more than simply an impression. Those results are presented in Chapter Six, which follows.
Chapter Six – the court file search
In this chapter, I present the results of extensive civil claim file searches carried out in the most important New Zealand High Court registries. This data proved most significant because it was not collected from media, and therefore could be used as independent control data against which to test the results of the media survey outlined in the previous chapters. Further, the court file search disclosed a more accurate picture of numbers of filed claims than that reported by media. In the event, the court file data tended to corroborate and endorse the media survey data referred to.