In Dew v Discovery NZ Ltd, the Supreme Court declined to restrain publication of a Newshub programme accusing Cardinal John Dew of sexually abusing a child who lived at a Catholic orphanage in 1977.
The Court of Appeal and the High Court had also previously dismissed Cardinal Dew's application but had granted suppression orders preventing publication and identification to protect his right of appeal.
Following the Supreme Court's decision, Newshub ran the programme containing the allegations of offending, together with interview footage of Cardinal Dew's denial which also outlined evidence in support of his defence.
It took around seven months for the application to proceed through the courts and, prior to the Supreme Court's decision being made, the police concluded their investigation and advised that no charges were to be laid against Cardinal Dew due to insufficient evidence. There was widespread coverage of Cardinal Dew's unsuccessful attempts to prevent publication via the courts.
Legal issues
The key legal issues were:
1. Should publication be restrained on the basis that it is defamatory?
The courts have been cautious in granting interim injunctions in defamation cases unless "there is no reasonable possibility of a legal defence" being raised.1 Cardinal Dew's submissions were that the programme would be "one of the most serious defamations in New Zealand history" with liability for "well over $1m in damages". In response, Discovery contended that any libel claim would be legitimately defended on grounds of truth and/or responsible communication of a matter of public interest.
2. Should publication be restrained on the basis it amounts to an invasion of privacy?
In cases of privacy, the seriousness of the allegations, legitimate operational concerns, freedom of expression, media industry practice, and the stigma of criminal charges are relevant in the court's assessment.2
Cardinal Dew's submissions were that the programme would be "a mere act of gossip and titillation" and there was an expectation of privacy in respect of information relating to a criminal investigation. In response, Discovery contended that there was a legitimate, if not compelling, public interest in the programme, not least because Cardinal Dew had previously apologised on behalf of the church to victims of historic sexual abuse. For that reason, Discovery submitted that the present case was not comparable to a publication involving a "mere celebrity" such as singer Cliff Richard who successfully sued the BBC in a privacy claim after a helicopter was used to televise a police raid on his home in 2014 following an allegation of sexual assault against him.
3. Should publication be restrained on the basis it would interfere with the administration of justice?
Cardinal Dew's submissions were that publication would subvert the Contempt of Court Act because, had he been arrested or charged for a criminal offence, there would be a prohibition on him being identified by the press to avoid prejudicing his fair trial rights.3 In response, Discovery contended that the Contempt of Court Act did not apply because no charges had been laid and, in any event, no prejudice would be caused because a criminal trial would not take place for a significant period of time following publication.
Supreme Court's decision
In dismissing Cardinal Dew's application, the Supreme Court held that:
- The high threshold for demonstrating that a defence to a defamation claim had no realistic prospect of success had not been satisfied because it was "not presently possible to say" that was the case and the "defences should be tested at trial".
- The fact that the police's investigation had concluded that no charges were to be laid meant that there was no risk of prejudice to Cardinal Dew's fair trial rights.
Seeking to restrain publication on grounds of a potential privacy claim was dropped before the appeal got to the Supreme Court stage but had been dismissed at the Court of Appeal on the basis that there could be no reasonable expectation of privacy in respect of events which Cardinal Dew denied took place. Further, the alleged victim's, and the media's, freedom of expression rights could not be displaced purely by reference to the fact that the police were investigating a complaint. If the publication was wrongful as Cardinal Dew alleged, he would have an actionable defamation claim to help vindicate the harm caused to his reputation.
The Court of Appeal decision on this point seems to draw a sharp line between defamation and privacy law. That contrasts with the "indistinct boundary" described in Driver v Radio New Zealand Ltd, where the Court gave examples of reputational harm legitimately falling within the privacy tort where that harm arises not from falsity (eg allegations of wrongdoing) but from truth (eg the fact of an investigation).4 While the Court of Appeal has elsewhere recognised the overlap between reputational and privacy interests,5 its reasoning in Dew seems to have been influenced by Discovery's focus on reporting the allegations themselves rather than the police investigation.6 Dew is unlikely to be the last word on this topic.
Comment
Using the courts to try and prevent publication of potentially defamatory material will always carry a significant risk because, if the application is unsuccessful, the fact that efforts were made to restrain publication becomes public and either forms part of the narrative or becomes a story in itself.
Following Dew, one argument will be that the appeals process and suppression orders were used in this case to improperly stifle publication, essentially an attempt to 'gag' the press, but the competing interests of:
- an individual's rights to protect their reputation, to privacy and, if relevant, to a fair trial;
- the media's (and, if relevant, the alleged victim's) freedom of expression rights; and
- the public interest in a publication,
will often be finely balanced, particularly where the subject matter is so serious and the individual in question is a high-profile figure. It will be interesting to see to what extent further legal action does in fact materialise from Newshub's publication of the programme relating to Cardinal Dew.