9/3/2023 0 Comments Deliveryslip acuqired![]() Speaking broadly, it may be moving toward protecting speech that’s in the public interest (even if it turns out to be wrong), where the reporter has behaved responsibly. There’s another defence called Qualified privilege, currently in a state of development by the courts. Unless Team Bain can show that the programme got some facts flat-out wrong, or perhaps omitted reference to some glaringly significant facts, this defence is a serious obstacle to a defamation lawsuit. Those are the requirements of the defence. There’s a very solid argument that the opinion is based on facts set out or referred to in the programme. There’s really no reason to doubt that his opinion is genuine. At all the key places he uses language such as “in my view…”. ![]() The programme is very carefully structured as a presentation of Bruce’s “personal opinion”. I’m guessing David Bain can do without that – quite apart from the serious risk that the jury would find the allegation justified.īut even if TVNZ didn’t manage to convince the jury that David was the killer, it might manage to make out another defence: Honest opinion (which used to be called “fair comment”). It would potentially be a mammoth case, extremely long, complicated and expensive. What’s more, a defamation jury could probably be shown all the evidence that was excluded by the criminal court, as well as anything that Bruce could turn up. It’s only a civil standard that applies: balance of probabilities (though the level of proof must be commensurate with the gravity of the allegations, which would suggest a burden higher than more-likely-than-not when you’re calling someone a murderer). They wouldn’t have to prove that beyond reasonable doubt, though. The onus would be on TVNZ/Bruce to prove the “sting” (which we’re supposing is that David is the murderer). If you purport to demolish the case against Robin, everyone will quite reasonably take you to be saying that David did it. As far as I know, no-one has suggested it could have been anyone but Robin or David. That was essentially their whole strategy. As Bruce pointed out, the defence team itself argued that Robin Bain committed the murders. A programme means what ordinary reasonable viewers would take it to mean, including the things that are between the lines. Does this programme actually suggest that David did it? TVNZ might say that the documentary was all about Robin, not David. The first hurdle for Team Bain is defamatory meaning. What chance would they have? (I won’t deal with the question of whether anyone else might have remedies, such as the witness Bruce raised questions about, Daryl Young.) Team Bain is making noises about legal action, which could involve either a defamation lawsuit or a broadcasting standards complaint. They seem particularly furious at Bruce’s conclusion that “in my view, there was no forensic evidence that Robin Bain killed himself or his family” (and later, in slightly watered down form, “the forensic evidence fails to support any such unlikely chain of events” as that required for Robin Bain to have committed the murders). So, now that TVNZ has broadcast its special edition of Bryan Bruce’s The Investigator: The case against Robin Bain, compellingly arguing that Robin Bain couldn’t have committed the Bain family murders, can David Bain and his team do anything about it? They argue that it’s “unadulterated rubbish”, contains “mischievous misrepresentations of facts”, “perpetuates a fraud”, and unethically refused to include their side. Budget leak: Nats’ behaviour “entirely appropriate”?.When free speech creates disorder or hate.NZME admits it misled listeners by buying into Trump’s ridiculous election fraud claims – but BSA somehow finds broadcasting standards not breached.
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