## Facts

- A nationally distributed magazine published an article and cartoon criticizing a former Prime Minister’s performance and credibility, including his recollection of past events.
- The former Prime Minister alleged the publication conveyed defamatory meanings, including that he was dishonest, insincere, manipulative, and lazy.
- He sued the columnist and the publisher for defamation and sought damages.
- The defendants pleaded multiple defenses, including a proposed “political expression” defense and qualified privilege for political discussion communicated to the public through the media.
- The plaintiff applied before trial to strike out the “political expression” and qualified-privilege defenses as legally untenable; the High Court refused.
- On appeal, the question was whether those defenses were available in law on the pleaded facts, assumed in the defendants’ favor for strike-out purposes.

## Issues

1. Whether New Zealand law recognizes a freestanding “political expression” defense to defamation for discussion of political matters.
2. Whether qualified privilege can extend to mass-media publications to the general public concerning the conduct and performance of elected officials and candidates for office.
3. Whether any such protection should be treated as constitutionally mandated or instead as a development of the common law informed by freedom of expression.

## Decision

- The Court of Appeal dismissed the appeal and upheld the refusal to strike out the qualified-privilege defense.
- The Court rejected the pleaded freestanding “political expression” defense as not part of New Zealand law.
- The Court held that qualified privilege is capable, in principle, of applying to mass-media communications on political matters involving the performance of elected officeholders and those seeking office.
- The Court emphasized that the privilege remained qualified and could be defeated by malice; factual questions about the publication and motive were for trial.

## Legal Principles

- A freestanding “political expression” defense (modeled on Australian constitutional jurisprudence) is not recognized; protection for political discussion must be found within established doctrine.
- Qualified privilege may attach to publications made to the general public where the subject matter concerns the functioning of representative democracy, including scrutiny of elected officials and candidates for office.
- Qualified privilege is not absolute; it is defeasible by malice and depends on the “occasion” of the communication, assessed in light of reciprocal public interest in receiving political information.
- Freedom of expression principles inform common-law development but do not themselves create a separate constitutional immunity from defamation liability.

## Conclusion

The Court of Appeal refused to create a new political-expression defense, but confirmed that qualified privilege can extend to media publications about the conduct and fitness of elected officials and candidates, leaving malice and related factual matters to be determined at trial.


Lange v. Atkinson, [1998] 3 N.Z.L.R. 424 (N.Z. C.A.)