A brief extract from Bevan Marten’s thesis ‘A FAIRLY GENUINE COMMENT ON HONEST OPINION IN NEW ZEALAND’ … (Victoria University) [PDF 400k]

Common to all such jurisdictions is the major tension in the law of defamation between freedom of expression and the individual’s right to reputation. The defence of honest opinion holds a key position within this tension, and is based on a set of principles that have remained more or less intact throughout both its common law development and later statutory enactments. The key concept of the defence, which protects statements of opinion as opposed to fact, is not difficult to grasp. It is essentially that people should be able to express their own opinions on the facts before them, even when those opinions are critical of others.

Whose Honest Opinion and Why?

As a result, honest opinion is aimed at a broad range of defendants, and is certainly not limited to those expressing reasonable or orthodox views. The defence enshrines “the right of the crank to say what he likes”, and is open to commentators with exaggerated, obstinate or prejudiced opinions.

In practice the defence is especially useful to media defendants, journalists and others who frequently evaluate and comment on the actions of others. However, with the rapid growth of the internet and other readily accessible means of mass­communication, the likelihood is that a growing number of people from all walks of life will be publishing opinions and relying on the defence.

The broad availability of the defence of honest opinion is closely linked to freedom of expression. Section 14 of the New Zealand Bill of Rights Act 1990 affirms the “freedom to seek, receive and impart … opinions of any kind in any form.” By protecting the freedom of expression of those who publish defamatory opinions, over and above those who suffer damage to their reputation, honest opinion occupies a noble place in the law as “… one of the fundamental rights of free speech and writing … and is of vital importance to the rule of law on which we depend for our personal freedom … .”

In principle, honest opinion promotes freedom of expression by enabling people to pass judgment on other people in society without the fear of being stung by the sharp end of defamation suits.

However, various limitations have been placed upon the principled position that the defence should be broadly available to those exercising their right to impart opinions. …

A summary of those limitations: 1) Honesty, 2) Supporting facts, 3) A matter of public interest. [That seems fair enough.]

I’m not a lawyer’s elbow, nor do I claim to understand all the implications of this, but this very interesting thesis also contains some good pointers for those publishing the opinions of others.

– Peter

PS “The defence is … open to commentators with exaggerated, obstinate or prejudiced opinions”. (Um, hello poormastery? Are we obstinate?)