Victoria University of Wellington Law Review

Can a Search Engine … [Be Held Liable for Defamation]?

Caitlin Ashby — 2025-05-07

When defamation occurs online, it has become increasingly common for complainants to seek compensation from the internet intermediaries (such as internet service providers, search engine providers and website hosts) which conceivably bear some responsibility for those publications. The liability of search engine providers is particularly contentious. This is because the defamatory words which appear in autocomplete suggestions and snippets are unique publications made by the search engine, but without the direct knowledge or approval of any human actor. The only case in New Zealand to have addressed this issue, A v Google, suggests that search engines might be liable as publishers, but is ultimately inconclusive. This article seeks to clarify the extent to which providers of search engines should be held liable in New Zealand for the defamatory content they disseminate by comparing the liability doctrines which have been applied overseas and assessing the policy implications of each approach. Ultimately, the author concludes that it would be disingenuous to preclude liability on the basis that a search engine is a mere facilitator of the defamatory content it disseminates. Instead, this article argues that liability should arise only once the search engine provider has actual knowledge of the defamatory words and has failed to remove them within a reasonable time, so as to support an inference that the search engine provider has assumed some responsibility for the publication. The assumption of liability doctrine is preferred as it provides an avenue for victims to seek compensation from those at fault, without encroaching on freedom of expression beyond what is demonstrably justified.

Divestiture in the New Zealand Grocery Sector? An Analysis and Application of the Principles of Divestiture in the Context of the New Zealand Grocery Sector

John Eccles — 2025-05-07

There is considerable concern about the state of competition in the New Zealand grocery sector. Recent responses from the Government have not helped to quell this. Many believe that only structural separation in the form of divestiture will restore competition to the grocery sector. This article examines the findings of the Commerce Commission's market study of the grocery sector and the Government's response to those findings. It then sets out the principles of divestiture as applied by New Zealand and United States courts. Finally, it applies these principles to the New Zealand grocery sector. Overall, it argues that courts must consider three key elements when analysing divestiture as an anti-competitive remedy: first, causation; secondly, the effect of the divestiture; and thirdly, the applicability of alternative remedies. Applying each of these elements to the grocery sector reveals that, whilst there would be some difficulty in implementation, the grocery sector is one where divestiture would likely be favoured by a court.

The Need to Recalibrate the Scales: Balancing Secularism and the Right to Wear a Hijab in Europe

Lia Horsley — 2025-05-07

The European Convention on Human Rights protects the fundamental right to manifest one's religious beliefs, including protecting a Muslim woman's right to wear a hijab. Nevertheless, some member states have prohibited Muslim women from wearing a hijab in certain contexts to safeguard the principle of secularism, and the European Court of Human Rights (ECtHR) has upheld these restrictions in four key cases. This article argues that the Court's decisions in these cases are not justifiable as the Court has conducted an inadequate analysis of the necessity and proportionality of the restrictive measures and applied an unduly wide margin of appreciation. It also argues that some member states may be relying upon abstract aims like "secularism" and "living together" as a façade to disguise hostility toward Islam and that the Court has been unwilling to address this concern. This article concludes with three recommendations for reform that aim to address the flaws in the Court's analysis and allow the Court to strike a more appropriate balance between state autonomy and the protection of fundamental individual rights. These reforms are necessary to promote tolerance in Europe and prevent states from relying on abstract principles to unduly restrict individual rights.

Navigating Towards an Airworthy Protection Regime for New Zealand's Airline Passengers

James Macey — 2025-05-07

Delays and cancellations are a frequent occurrence in air travel, but passenger protections in New Zealand lag behind those in other jurisdictions such as the European Union and Canada. Concerns around airlines' treatment of passengers were brought to the fore during the COVID-19 pandemic, but protections were not strengthened in the replacement of the Civil Aviation Act 1990 with the Civil Aviation Act 2023. The new Act provides insufficient protection to passengers, and New Zealand's other consumer law is also inadequate and difficult to apply to an airline context. Neither set of law has a dispute resolution scheme that is fit for purpose. Public enforcement of relevant laws by regulators is limited to breaches of the Fair Trading Act 1986, largely for misleading or deceptive trading practices, and not for breaches of specific obligations to passengers.
This article examines the deficiencies in New Zealand's airline passenger protection law and compares that law with the corresponding law in Australia, the European Union and Canada. It advocates for the making of regulations that provide for fixed amounts of compensation when a flight is delayed for controllable reasons, rather than laws which require a passenger to prove damages. That is consistent with the European and Canadian approaches. It also advocates for refunds to be made available to passengers where flights are cancelled or significantly delayed. To ensure that new regulations would be effective, this article also advocates for an adjudicative dispute resolution scheme, funded by airlines according to their market share and the number of complaints received, with capacity for public enforcement (monetary fines) by the Commerce Commission.

Confronting the DeFi Revolution: A Comparative Analysis of the Application of New Zealand's Personal Property Securities Act 1999 to Cryptoassets

Sameer Mandhan — 2025-05-07

The financial sector in the 21st century is experiencing a revolution. The major disruptor is decentralised finance (DeFi) which leverages emerging blockchain technology to eliminate the need for centralised financial institutions and empowers individuals with peer-to-peer digital exchanges. DeFi is underpinned by cryptoassets such as bitcoin, ether, and non-fungible tokens (NFTs). As DeFi offerings have become increasingly sophisticated, important legal issues have arisen. One such issue is whether the law is appropriately positioned to recognise and give effect to the use of cryptoassets as collateral in lending arrangements. The lack of legal certainty at present poses a substantial risk to market participants who are, for the most part, transacting blindly. This article, therefore, addresses the applicability and comparative suitability of New Zealand's Personal Property Securities Act 1999 (PPSA) to cryptoasset collateral, using the recent Singaporean case of Chefpierre as a test case. It argues that the PPSA is generally better positioned than English (Singaporean) secured credit law to respond to the emerging use of cryptoassets as collateral. Nevertheless, the challenges posed by cryptoasset collateral necessitate legislative change; in particular, change to the PPSA's perfection requirements and priority rules. After reviewing and analysing recent legal developments in the United Kingdom and the United States, this article proposes that a number of bespoke rules and concepts designed to respond to cryptoassets be introduced into the PPSA.

In Dissent of Dialogue: Why Dialogue is a Dangerous Metaphor for Conceptualising

Hannah Nathan — 2025-05-07

The senior courts of Aotearoa may formally declare an Act as inconsistent with the New Zealand Bill of Rights Act 1990, a remedy which now requires an executive response and debate on the matter. Given this cross-parliamentary involvement and the constitutional centrality of human rights, the precise relationship between the courts and Parliament under the Bill of Rights Act has attracted great attention. Internationally, these relationships have been metaphorically compared to a dialogue, framing a declaration as the judiciary "speaking" to Parliament and Parliament "speaking back" to facilitate robust, collaborative engagement with human rights protection. Dialogue has infiltrated the development of Aotearoa's declaration of inconsistency (DOI) framework, albeit inconsistently, resulting in a multi-branch remedial framework which is conceptually confused. Despite the legislature's approval of dialogue, it was rejected by the Supreme Court. This puts the key actors in DOIs at odds as to the remedy's purpose and underlying constitutional relationships.
This article argues that DOIs conceived as dialogue masks reality. Dialogue has been inappropriately imported into this remedy, and as this article argues, should be reconceptualised to better reflect the reality of practice in Aotearoa, as well as to abate the inherent dangers of the metaphor. By tracing the judicial development and subsequent legislative affirmation of DOIs, this article traces dialogue's implementation in the conception of the DOI to demonstrate that its current form is unworkable. A case study of Make It 16 reveals how these failures unfold and highlights the dangers of dialogue in Aotearoa. Finally, this article attempts to address these dangers by recasting the metaphor as Discourse, which better reflects Aotearoa's constitutional landscape and promotes richer parliamentary responses to declarations.

Does Content Count? Constitutionality and Enforceability of Entrenchment Provisions in Aotearoa New Zealand

Florence Oakley — 2025-05-07

Recent commentary on the enforceability of entrenchment has signalled a marked shift from Diceyan orthodoxy. This emergent view suggests that Parliament is legally obliged to comply with enhanced procedural requirements, despite their ostensible contravention of parliamentary sovereignty. The precariousness of this understanding was highlighted by the Green Party's proposal in November 2022 to entrench an anti-privatisation provision in the Water Services Entities Bill at a 60 per cent threshold. The provision was passed under urgency and, following critical backlash, swiftly repealed. This article argues that two constitutional conventions have developed in the wake of this commotion. These conventions require that entrenchment clauses uphold democratic fundamentals and set a threshold of a parliamentary supermajority of 75 per cent. Further, this article contends that the enforceability of entrenchment provisions is predicated on their content: they must uphold the functioning of representative democracy. This is due to a change in the rule of recognition driven by more nuanced understandings of parliamentary sovereignty and its place in the constitution.

The Right to Stay: The Scope of the Right to Enter One's Own Country as a Legal Protection for Long-Term Permanent Residents Deported under Australia's "501" Policy

Jaime Lorna Shadbolt — 2025-05-07

Article 12(4) of the International Covenant on Civil and Political Rights states: "No one shall be arbitrarily deprived of the right to enter his own country." Australia's continued practice of using the controversial "501" policy to deport individuals, who for all purposes but citizenship can be considered Australians, is a violation of this right. This article analyses the relationship between international law and domestic law on the availability of art 12(4) as a method of protection for individuals who face deportation under Australia's 501 policy. It discusses the meaning of one's "own country" and how its interpretation has developed in international law, from the travaux préparatoires of the article to the decisions of the Human Rights Committee. It then assesses how Australia's domestic legal framework has responded to the standards established in international law in relation to cases concerning 501 deportees. It demonstrates how Australia has been reluctant to exclude individuals from the scope of s 501 on the basis of their absorption into the Australian community, such that it renders Australia their "own country". Overall, it demonstrates how Australia is failing to recognise the right enshrined in s 12(4) by continuing to employ the 501 policy to deport individuals with sufficient connections to Australia such that it can be considered their "own country".

An Examination of the Customer and Product Data Bill: Leveraging Australia's Lessons

Ciaran Ward — 2025-05-07

The implementation of a Consumer Data Right (CDR) in Australia has pioneered an economy-wide data portability framework, setting a precedent for others to follow. New Zealand is poised to adopt a similar model, and in May 2024 introduced the New Zealand Customer and Product Data Bill to its House of Representatives. This article offers an overview of the CDR and evaluates whether New Zealand's legal framework and implementation strategies can circumvent the hurdles that have impeded the CDR's adoption in Australia. Ultimately, the author argues that without sufficient industry and consumer participation, the CDR's efficacy and long-term viability are at risk – concessions must be made to ensure the CDR attracts both customers and industry players. This article considers action initiation, the decision to utilise existing Privacy Act 2020 Information Privacy Principles (IPPs), the exclusion of reciprocal data sharing and the considerations of Māori data and Māori data governance.