Should story tellers and content creators be alarmed by the recent decision in Ellis v The King?

For many years the rule has been very clear: “you cannot defame the dead”. While some causes of action survive the death of the plaintiff and vest in their estate, the Law Reform Act 1936 (s3(1)) says this does not apply to defamation actions. Upon the (defamed) plaintiff’s death, their cause of action in defamation dies with them.  

But according to tikanga Māori, should it?

Tikanga Māori is essentially Māori common law. According to the Statement of Tikanga adopted by the Supreme Court, it includes the “values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct.”

The recent Supreme Court criminal appeal decision in Ellis v The King (2022) quashed Mr Ellis’s sexual offending convictions, despite Mr Ellis having passed away prior to the hearing of his appeal, with the majority finding it remained appropriate to hear his appeal in the interests of justice, including due to tikanga Māori principles.  

Mana is a fundamental principle of tikanga – indeed mana is one of the most valuable and important things a person can have. It includes the concepts of power, presence, authority, prestige, reputation, influence, and control, and it can be either inherited or alternatively gained (or lost) based on a person’s (or their family’s) actions or ability. Mana survives death.*

Tikanga experts informing the Court explained that hearing the appeal, despite Mr Ellis’ death, was important to restore balance and mana for both sides and achieve ea (restoration of relationships, balance, and peace).  

So, should tikanga Māori principles flow through to New Zealand defamation law, which is also arguably focused on restoration of reputation?  

Under New Zealand’s current defamation law, content creators such as writers, film and documentary makers can tell the real life stories of people who have passed away, without fear of defamation actions brought by the deceased subject’s estate. They still need to be careful not to defame the subject’s (surviving) relatives and associates but defaming the (dead) subject is not a legal concern. The justification for this rule has long been that defamation actions are intended to restore harm to reputation and address hurt feelings: once a person has passed away, they no longer have “feelings” to be hurt and they no longer have a personal interest in their reputation.

However, tikanga recognises that mana very much survives death. Indeed allegations of hara (harm) committed by one person can result in a loss of mana for not only the deceased but also their future generations.** As the Supreme Court has affirmed that tikanga Māori is part of New Zealand’s common law, and defamation law generally evolves with the mores of society (it was once even defamatory to call someone a homosexual or allege unmarried cohabitation) should we now revisit whether it ought to be possible to defame the dead, to achieve ea and restore mana for the deceased and their family?

Story tellers will be relieved to hear that Dame Helen Winkelmann, New Zealand’s Chief Justice, considers the answer is a hard “no”. Tikanga, or indeed any aspect of common law, cannot override a clearly conflicting statute. Her Honour also considered that harm to a person’s mana due to defamation by the State (via wrongful conviction) was a very different kind of harm from that caused by defamation by anyone else (such as a film maker). She considered the stigma attaching to criminal conviction to be of considerably greater magnitude.  

This means that unless Parliament takes another look at the continuing appropriateness of s3(1) Law Reform Act, through the lens of tikanga, the legal risks relating to defaming the dead will not change.  

We will be watching with interest.

If you have questions about defamation law or the risks inherent in real life story telling – please get in touch with one of our experts.

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*Ellis v The King [2022] NZSC 114 at [132], [185(c)], [250]
** Ellis v The King at [228], [250]

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Social media image credit: Andre Benz