Defamation and Local Governments

Elected members of local governments hold a position of respect and power in the community they serve. With this comes increased public scrutiny. Consequently, elected members and other local government employees must take particular care when making statements to ensure the material is not defamatory.

As recent case law below illustrates, this is especially true on social media, as even when posting to a private social media account, elected members and/or local government employees can be seen as acting in their professional capacity.

Additionally, elected members and/or local government employees must regularly review their social media accounts to remove any potentially defamatory comments left by third parties given their private accounts can be held to be the ‘publisher’ of defamatory material.

What is defamation?

Defamation in Western Australia is governed by the Defamation Act 2005 (WA) (the Act).

In order to bring an action or a claim in defamation the injured person must be able to demonstrate that:

• there was a communication (publication) to a person other than the injured person;

• the publication was about or concerns the injured person; and

• the publication was directly or indirectly defamatory to the injured person in that it:

  •            lowers the person’s reputation in the community;

  •            leads people to think less of, shun or avoid the person; and

  •            injures the person’s reputation or standing in the community,
               business or profession.

In Australia, public posts and comments made on social media (including Facebook, Instagram and Twitter) will constitute ‘publication’ as they can be read by any visitor to the page.

Common defences 

Even if a comment is defamatory, it is necessary to consider whether any defence could apply pursuant to the Act. Common defences include;

• justification – the defendant must prove that the defamatory imputations carried were substantially true;¹

• qualified privilege – the defendant must prove and believe on reasonable grounds that the recipient of the defamatory information had an actual or apparent interest in receiving that information. The information was received in the course of giving the recipient information on that subject. They acted reasonably in the circumstances;² and

• honest opinion and fair comment – the defendant must demonstrate that their statement was expressed as opinion rather than fact in respect of matters of public interest based on proper material.³

Recent cases involving local government employees and social media

In the recent case of Wellington v Metcalf ⁴, the plaintiff, Heather Wellington, had held her position as a local councillor of Wincheslea Ward since 2012.

During the election campaign in 2020, the defendant Kristy Metcalf established a Facebook page to create posts about the 2020 campaign.

On the Facebook page there were seven posts published which the plaintiff alleged contained defamatory imputations. Those imputations alleged that (among other things) the plaintiff:

• told lies in relation to a planning permit;

• incited a group that engages in hatred towards others to harass the defendant, by fuelling them with false information about the defendant’s planning application;

• put the lives and safety of the defendant and her family at risk by ignoring the defendant’s pleas for help to address an unrelated planning issue; and

• created a fictitious scandal concerning the defendant’s planning application;

(the Facebook Posts).

The plaintiff submitted that the defendant had engaged in a gratuitous and wrongful denigration and vilification which the plaintiff alleged was apparent from the defendants ‘sensationalist, sardonic and nasty’ conduct ⁵ and sought to claim aggravated damages to compensate her for the increased hurt and humiliation she suffered as a result of the defendants conduct. 

The plaintiff also argued that:

• the defendant never genuinely sought to ‘correct misinformation’ and instead through her conduct, pursued public revenge.

• the court ought to place considerable weight on the way the defendant conducted her case, in that the defendant relied on the defence of truth, maintained the Facebook Posts on her page and under cross examination, alleged that the plaintiff acted with dishonest and improper motives.

The Court found that an ordinary reasonable reader viewing the Facebook Posts in light of the surrounding circumstances would find them to be defamatory. Further, the Court found the defendants’ conduct had aggravated the hurt and embarrassment felt by the plaintiff and the harm arising from the original posts. 

The defendant was ordered to pay the plaintiff damages in the amount of $100,000 which included a component for aggravated damages.

It is clear from case law that elected members must regularly review their social media accounts (both personal and professional) to consider whether they may contain any defamatory imputations as they could be considered to be the publisher of those comments. Further, local government employees also have certain disclosure obligations which they also must comply with.

Disclosure obligations

Councillors, Chief Executive Officers (CEO) and local government employees must make decisions in the best interest of their communities and have an obligation to disclose certain matters pursuant to the Local Government Act 1995 (WA) (the Act).

In particular, councillors and CEOs will have a duty to disclose whether they are involved in defamation proceedings (whether as a plaintiff or a defendant), if these proceedings adversely affect their impartiality at a meeting.

This duty was illustrated in the case of Chief Executive Officer of Dept of Local Government, Sport and Cultural Industries and Southwell ⁶ where in late 2019, Mr Southwell a member of the Shire of Chapel, commenced defamation proceedings against Mr McCabe (the then CEO of the Shire).

After commencing proceedings, Mr Southwell called a special council meeting where he moved a motion and an amended motion (Motions). The Motions called for the urgent review of Mr McCabe's performance and to advise Mr McCabe  to undertake only those tasks delegated by statute ‘and refrain from providing unsubstantiated claims and opinion in reports and emails to Councillors’. ⁷ At no time did Mr Southwell disclose to the meeting he was involved defamation proceedings against Mr McCabe.

It was for the Tribunal to determine whether Mr Southwell in failing to disclose these proceedings had contravened Regulation 11(2) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) and considered;

• first, whether Mr Southwell had an interest in the Motion; and if so
• whether he complied with the disclosure requirement pursuant to the Regulations.

The Tribunal found that the threshold for whether a person has an interest in a matter for the purpose of Regulation 11(1) of the Regulations is low. This was due to the broad and inclusive language used in the definition of ‘interest’ for this regulation and the limited consequences flowing from having such an interest, that is, being the requirement to disclose the interest, rather than it being excluded from discussion.⁸

The test for a relevant interest is objective and directs attention to whether a matter ‘could or could be perceived to affect the impartiality of a councillor’.

In this case the Tribunal was satisfied that the defamation proceedings were a relevant interest and disclosure had not been made, in contravention of Regulation 11(2) of the Regulations. Being a rule of conduct, it was a considered a ‘minor breach’ of the Act.⁹ But a minor breach can become a ‘recurrent breach’ once a councillor has been found to have committed two or more other minor breaches.¹⁰

The Tribunal found that given earlier decisions of the Tribunal had affirmed twelve previous minor breaches by Mr Southwell.¹¹, there was no doubt the breach in this case was recurrent.

Since this decision the Regulations have been repealed and replaced with the Local Government (Model Code of Conduct) Regulations 2021 (WA).

However, a council member is still required to disclose an interest which may adversely affect their impartiality, particularly if this interest is going to be discussed at a council or committee meeting.¹² This disclosure must be made in writing to the CEO before the meeting, or at the meeting immediately before the matter is discussed.¹³

Lavan comment

Social media is a powerful tool allowing local councillors, CEO’s or government employees generally to communicate news, events, and messages to a large number of constituents instantly.

However, the above cases should act as a timely reminder to take care when posting content, and to:

• regularly audit personal (and professional) social media accounts, in order to prevent potentially costly defamation actions; and

• consider the obligation to disclose any involvement where defamation is alleged or proceedings are issued.