Randall Stephenson, ‘Durie v Gardiner: Public Libel Law and Stare Non Decisis’

ABSTRACT
This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation’s public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory‐doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal’s settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law’s best hope for advancement.

Randall Stephenson, Durie v Gardiner: Public Libel Law and Stare Non Decisis, Modern Law Review. First published: 26 February 2020. https://doi.org/10.1111/1468-2230.12524.

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