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July 22, 2013 | by  | in Opinion |
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Laying Down the Law

NAMING, NOT SHAMING

When John Key made his “gay red shirt” call, it became pretty damn obvious that using the word ‘gay’ to insult someone is no longer acceptable for most New Zealanders. One issue that is less clear is whether or not it’s okay to publicly proclaim that someone else is gay.

The law in New Zealand has had to develop in the last few years, to deal with issues that arise with the proliferation of media outlets. One major change has been the development of the torts of defamation and breach of privacy.

Breach of privacy happens when someone publishes private facts about someone else, if the publication of those facts is highly objectionable to a “reasonable person”. Defamation, on the other hand, is when you publish a statement about someone which would lower their reputation in the minds of “right-thinking” members of society. Under both of those types of claims, you might be able to get damages (cash-moneys) from the person who published the thing about you.

The interesting thing about both claims is that it’s not always obvious what will be offensive to a “reasonable person” or a “right-thinking member of society”. Sometimes it’s fairly clear – if someone publishes a story saying that you are a criminal, or that you’re incredibly racist, you probably don’t want other people thinking that about you. But would a “reasonable person” be offended if someone said they were gay? Or would publishing a story about someone and suggesting they are a lesbian make “right-thinking members of society” have a lesser opinion of you?

A few years ago, if a story came out that someone was gay, it probably would have lowered other people’s opinion of them. Now, there might be an argument that if someone was married and it came out that they were gay, that would lower others’ opinion of them, if they were perceived to be lying to their partners. However, on the whole, it seems that times have changed, and it’s unlikely that most of us would think less of anyone else if we heard that they were attracted to members of the same sex.

That seems to be the prevailing opinion, although the issue is still contentious in New Zealand. There was a case a few years ago where an All Black managed to stop a story being published that suggested he was gay, but the overwhelming academic opinion seems to be that it would not be defamatory or highly offensive to be called gay in most cases. That’s probably the right result – we want our courts, as one of the three branches of government, to promote the idea that it’s not embarrassing or offensive to be gay or to be called gay.

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