Mediawatch on Radio New Zealand this morning gave good coverage (and acknowledgments) to Cactus Kate’s expose of the ABN stable’s unwillingness to budget for defamation defence.

But they are all still appealing to the ideals of noble journalism and the altruism of media owners to defend the role of the media and free speech. They will never be enough to counter the serious threat to free speech now represented by the toxic mix of sound defamation principles with nice but stupid rules on cost awards in the procedural swamp of our courts.

Even an outright win in a defamation case leaves the publisher deeply in the red. That is because dopey judges over 4 decades have left all litigants in New Zealand (other than those on legal aid) facing discouraging costs for even the most simple cases. They mean that winners don’t win. At best they’ll get an award of perhaps half the real costs. To add to the risk there’s little willingness to require dodgy plaintiffs to post security for payment of costs awarded against them.

And that is for trials that end. There is no upside from the  preparatory spending forced on an innocent defendant, if the plaintiff has the wit to drop the case before trial. So many of them can expect the gagging writ to do the trick – the defendant will fold and settle at an early stage top avoid huge wasted time and costs.

Our expectations of courage from publishers developed in times when a routine win could result in serious reimbursement of costs, and when the whole process took perhaps one quarter of the time a case would take today.

Tim Pankhurst and the Media Freedom Committee of the Commonwealth Press Union should be finding an MP to sponsor some new directions to the judges. They’d spend their time more productively targeting the cause than defending or bewailing the symptoms. I tried to interest them in this a few years ago after we’d successfully resisted Margaret Wilson’s attempt to revive criminal libel in electoral law.

I suspect that there is a place for an offense of criminal libel, but far more urgent is a reform along the lines I urged  in posts here and here.