NZ needs a legal remedy for cultural misappropriation

Analysis: From Formula 1 clothing lines to baby products, a variety of businesses have come under fire for allegedly using Māori cultural imagery and language without context or permission. But it doesn’t stop there.

Social media filters that superimpose moko kauae and mataora (forms of Māori facial tattoo) on users’ own faces have been heavily criticised for demeaning what are important expressions of identity.

In 2020, a local TV presenter was taken to task for sharing an image of a monkey sculpture wearing a traditional korowai feather cloak and tā moko facial tattoos. Air New Zealand came under fire in 2019 for attempting to trademark the term “Kia Ora”, the name of its in-flight magazine.

And it’s not only the misappropriation of Māori culture at issue. In 2017, an Auckland company was criticised for allegedly exploiting Romani gypsy culture for commercial gain.

Currently in New Zealand, however, there is no available legal recourse for individuals and communities who feel their traditional knowledge or cultural expressions have been misappropriated. And while the World Intellectual Property Organisation is developing international frameworks, progress is slow.

There have already been calls for a law to address the problem in New Zealand. But my recent research suggests existing civil law could be the best avenue for legal redress.

Redress under the common law

There could be a common law “tort” available in case of alleged cultural misappropriation. Basically, a tort is a common law action for harm caused by a wrongful act which could be remedied by compensation.

Cultural misappropriation has been defined as the inherently harmful use of elements of a culture or identity by members of another culture or identity. It can be especially controversial when members of a dominant culture appropriate from minority cultures.

A common law tort would enable an aggrieved party to bring a court action to uphold the value and importance of their culture, validate that harm was caused by the misappropriation, compensate the party for the harm, prevent further harm, and require the defendant to give up unauthorised gains.

Under the tort, the accuser would need to prove several things:

• that the defendant appropriated an element of their culture
• that this was done without the consent of the cultural community
• that the defendant appropriated the plaintiff’s culture for their own advantage
• and the appropriation was inherently harmful.

Defences to such a claim would include that the defendant has rights in the cultural work in question, or that their appropriation of it is in the public interest.

Such defences would ensure the tort did not unduly limit freedom of expression or the dissemination of information.

Navigating grey areas

Use of a common law tort in such cases is not without controversial aspects.

A legal response to cultural misappropriation could be said to be inherently racist if Māori could bring a claim but people from other cultures could not. The tort is immune to such concerns as an action could be brought for a misappropriation of any definable and distinct culture – for example, Romani culture.

There may be a concern that a tort will create tensions between potential litigants. But tensions already exist, and reconciliation is only possible when grievances can be aired safely and addressed genuinely.

Many groups frequently experience harmful appropriations of their cultures without any form of redress. Currently, misappropriation claims are dealt with almost exclusively through the media, which can often be reactive and emotive.

A tort would provide a legal option. Judges would be able to weigh claims in light of all available evidence. This should lead to more principled discussions about the misuse of cultures.

There is also a concern the tort would create uncertainty because it would require the court to determine a threshold for cultural misappropriation, and to exercise discretion.

But the courts routinely navigate grey areas and judges are experts at this. Over time, the courts develop a sense of where the appropriate threshold is and come to treat similar cases alike.

A recent example of this in action was the Supreme Court decision in Smith v Fonterra Co-operative Group, which opened the possibility that companies could face liability for damage caused by greenhouse gas emissions.

The novel nature of the tort, and the significance of the alleged harm, persuaded the court not to strike out the claim before a full trial. Similar arguments could be made in a case arguing for a tort of cultural misappropriation.

Waiting for the right case

Parliament has yet to really engage with these issues. But the beauty of a tort is that courts can recognise them as a matter of law without the need for new or amended legislation.

So, a court could recognise a tort of cultural misappropriation without advocates having to generate the political will or support of parties in parliament.

The potential for a tort of misappropriation of culture is there. But it will depend on the right case and the willingness of plaintiffs to fight right through to New Zealand’s highest court.

Regardless of whether or not a court recognises this tort, my research highlights a gap in the law. Communities need some legal means to protect their traditional knowledge and cultural expressions from harmful appropriations in New Zealand, pending an international framework that protects them overseas.