For councils in Australia today, social media can be extremely beneficial as to platforms to announce events, communicate with residents or sound warnings to local communities when there are emergencies or natural disasters

However, two recent decisions of Victoria’s County Court illustrate how social media activity can lead to expensive litigation and substantial damages being awarded to a successful party. For councillors who look to social media as a channel for community engagement, these cases, as well as subsequent changes in the law, should provide a reminder that there can be a legal remedy when it comes to defamation.

In the first decision (handed down last September) – Zuchowski v Howe – damages of $205,000 were awarded against a Councillor. In the second decision (handed down in December last year) – Wellington v Metcalf – a Councillor was awarded damages of $100,000.

Both decisions involved actions for defamation.

Defamation

Defamation is a civil wrong aimed at protecting a person’s reputation. It seeks to balance the protection of a person’s reputation with another’s right to freedom of expression.

If a person publishes (whether an author or administrator of a social media account) defamatory matters about another, that person can be liable for defamation. At least this will be so unless they can make out a defence. Typically a person sued in defamation relies upon a mixture of common law and statutory defences.

Both at common law and under the Defamation Act 2005, truth (or justification) is a complete defence to an action in defamation. So too, is the defence of Qualified Privilege. Qualified Privilege only attaches to certain occasions, meaning the publisher can escape liability even though the defamatory matter is untrue. However, if the defendant (publisher) is actuated by malice, the Qualified Privilege defence will be unavailable.

The County Court decisions

In Zuchowski’s case, the defendant was liable as a result of third-party posts on his public Facebook page. Those posts included assertions the plaintiff developer was a ‘cynical thief’, ‘corrupt’ and a ‘cowboy’. None of the defences relied upon could be made out.

In Wellington’s case, the defendant was liable as the author of posts on the public Facebook page that she maintained. She had referred to the plaintiff Councillor in terms suggesting the Councillor was a liar and had fraudulently claimed reimbursement of expenses and engaged in corrupt conduct as a Councillor. Again, no defence, including the Qualified Privilege defence, succeeded.

Legal Implications

Social media has come to be a powerful communication tool. But as the two recent decisions illustrate, social media use is replete with legal risk.

It should not be assumed that posting something on a social media platform is akin to a private conversation, such that anything said remains between friends or colleagues. Enough platforms ordinarily have enough users to mean the essential elements of a defamation action can be made out. And the ‘grapevine effect’ of many social platforms can lead a Court to conclude that the damage to a plaintiff’s reputation is real and substantial, warranting a significant damages award.

It has been proposed that there be legislation to give greater protection to those who administer social media platforms in circumstances in which third parties are responsible for the defamatory post. This and other legislative reforms are likely to go some way towards limiting the potential for liability in defamation. That liability will, however, remain ample and real.

Councillors – whether posting or auspicing posts or wishing to take measures to protect their own reputations – would do well to remember that the law of defamation has largely (if imperfectly) kept pace with modern means of communications, and anyone whose reputation has been tarnished may look to a legal remedy.

If you have any questions concerning legal risks of social media pages, contact our Partner, Mark Hayes, from our Government Advisory Team.