The National Press Club seeks the opportunity to draw your attention to elements of the laws of defamation and libel and
the interpretation of them in the context of this recent case.
We perceive the danger in which the sources of an international story become revealed and in doing so become inevitably
disclosed to the world at large.
We would like these points in the case to be considered:An absentee plaintiff through their agents can precipitate a defamation action in the New Zealand High Court.This same absentee plaintiff and their agents can successfully order the handing over of correspondence such as emails
that have passed between the journalist and their source.In spite of New Zealand’s court system said to be already congested with cases of varying degrees of magnitude of
severity a civil case such as this one was accorded a ready fixture.The defendant who had substantial costs awarded against them was given no indication of a countervailing deposit made by
the plaintiff or through their local agents.
The reason that we seek the attention of the Commission in this matter is that the outcome of this case has created
alarm within a number of organisations with which we are affiliated or involved internationally
These include the Overseas Press Club of America, the Committee to Protect Journalists and the Alliance for Journalists’
Freedom.
The common cause in seeking the consideration of the Commission of a review of laws is that the case indicates that
international stories covered in New Zealand can be suppressed through an action brought about by an absentee plaintiff
and that a Court here can order the handing over of documents revealing sources and their information.
We note the Commission’s willingness to evaluate ideas leading to the review of laws and our particular anxiety aroused
by this case is about the determined and continuing move for the defendant to hand over information connected with the
case, and thus their stories.
The Court was made aware of the plaintiff’s urgency expressed via their agent to have this story source data made
available to them.
We note that the original stories underpinning this case were derived from events and actions in other countries, the
United States and Russia.
Therefore the possibility must be considered of the consequences to individuals connected with the original series of
stories should their involvement in them become more widely known.
Should New Zealand be perceived internationally as a door of entry to successful litigation in this sphere then we
suggest that rules embodying discovery and disclosure in a case such as this one be reviewed in order to protect third
parties.
In regard to disclosure we suggest that full disclosure be mandated in regard to a plaintiff’s deposit, its presence or
otherwise, in the matter especially of absentee plaintiffs.
These submissions are made in cognisance of the Commission’s stated belief that it “is critical that the current views
of New Zealanders inform our recommendations,” and similarly in the spirit of the Commission’s objective of seeking
ideas in this context.
We note in the judgment summary the reference to “fishing expedition”.
Our submission centres on our worry that in the matter of a globalised case such as the one under discussion here that
the order of disclosure inherent to this case is likely to pose severe consequences for third parties in countries
beyond the New Zealand jurisdiction.
In any deliberations we may take the liberty in the matter of jurisdiction of reminding the Commission of regulations
applying in the UK which provides that the Court will not have jurisdiction to hear a defamation claim where the
prospective defendant is resident outside of the UK, European Union or the Lugano Convention states (Norway, Switzerland
and Denmark), unless it can be satisfied that England and Wales is clearly the most appropriate.