In Fact, It’s a Matter of Opinion: Determining a Distinction Between Fact and Opinion within the New Zealand Defence of Honest Opinion

This paper discusses the distinction between fact and opinion within the defence of honest opinion. It is argued that the classic legal tests for determining that distinction are largely unhelpful and produce unpredictable results, which trigger a chilling effect on speech. This paper advocates for an adaptation of the four-factor totality of circumstances test, established in Ollman v Evans 750 F 2d 970 (DC Cir 1984), to be inserted into the New Zealand Defamation Act 1992. This would provide more clarity, consistency and predictability for the defence of honest opinion in New Zealand, thereby better supporting freedom of expression under s14 of the New Zealand Bill of Rights Act 1990.