How dare you say that! - The ins and outs of dealing with defamation

At the Bartier Perry Local Council Conference on 20 September 2018, I presented on “Unwelcome media commentary – what can you do about it?”. In that session, I looked at the changing legal and media landscape for Local Councils, and examined strategies for managing unwelcome media attention. In this bulletin, I look more closely at some of the external management options available to Local Councils.

A “not uncommon” situation

We are increasingly contacted by councils who are at the centre of unwelcome media attention, often involving social media and sometimes involving serious allegations. Although sometimes the result of unfounded complaints by concerned residents, local media and “shock jocks”, the seriousness of the allegations, and their potential effect on council, staff and councillors, make it necessary for all involved to know their rights and what processes to follow to contain and manage the situation.

A case example

In October 2018 the former mayor of Narrabri Shire Council, Conrad Bolton, was awarded more than $100,000 in damages after Facebook posts were made by a local resident accusing him of corruption and intimidation.

The disgruntled resident had set up a website called “Narri Leaks”, which became known to other residents in the area. Mr Bolton’s children were approached at school about the allegations on the website, and Mr Bolton and his wife noticed a significant drop in the number of invitations they received to functions and events. The Court was told that the Narri Leaks page had been “devastating” and “soul-destroying”.

The proceedings were commenced in 2015, but only came to a conclusion three years later in 2018. Mr Bolton was awarded his legal costs and interest. The disgruntled resident was permanently restrained from publishing or broadcasting any further defamatory content.

Defamation

What is defamation?

Defamation occurs when a person’s reputation is damaged as a result of a publication about them. It applies to online and social media statements, as well as statements made by traditional forms of communication. The law of defamation is governed by the Defamation Act 2005 (NSW) and the common law.

To prove defamation, a person needs to establish that:

• defamatory words/imputations were published.

• the publication was made by a person to at least one other person.

• the defamed person was identifiable in that publication.

• the publication conveyed meaning likely to lower the defamed person’s reputation in the eyes of ordinary, reasonable members of the community.

The defamed person also needs to bring the claim within one year of publication.

Who can bring a claim?

Generally, whoever is identified by the relevant statements has the right to bring a defamation claim. Defamation is a personal right of action owned by the person aggrieved. As a public body, a local council does not have a right of action in defamation. However, an employee or councillor who is adequately identified by a defamatory publication, by name or otherwise, may have the right to bring a claim.

Because defamation is a personal right, councils need to ensure that funding court proceedings for defamation won’t lead to allegations of misuse of funds. For this reason, councils often have a rule in their codes of conduct prohibiting the funding of legal services for advice on defamation claims or associated litigation.

How hard is it to prove defamation?

To pursue a defamation claim, you must provide proof of publication of the defamatory statement. This means you need to show that the person you are accusing participated in the chain of communication of the offending material to third parties. The person making the defamatory statement must have either intended to convey the material, or been reckless as to whether their conduct would lead to that outcome.

That may not always be easy. For example, if a defamatory publication is disseminated online by an anonymous source, it can be difficult (not to say expensive) to identify the author. While you may be able to prove that a Facebook page has defamatory statements on it, you might not be able to prove that a particular person posted them.

“Publication” of a defamatory statement takes place where the offending material is downloaded onto a device and accessed, regardless of where the offending material was uploaded. For that reason, it is common for actions in defamation in New South Wales courts (for example) to be pursued against people outside that jurisdiction – even overseas.

Although forensic data analysts can find out much about the timing and location of online publications, their work can lead to dead ends if a person has been careful to cover their tracks.

All these factors add up, and pursuing someone for defamation can be protracted, difficult and expensive, particularly when they do not admit publication.

Managing unwelcome media attention

Councils must be ready to manage serious allegations – even if they at first seem bizarre or unfounded. Councils must also follow policies and procedures, including those in the 2018 Procedures for the Administration of the Model Code of Conduct published by the NSW Government. Finally, councils should be aware of their obligations under legislation, including the GIPA Act and the Public Interest Disclosures Act 1984. Outside of these obligations, councils can also take steps to contain fallout from unwelcome public attention.

Curating a media response

In today’s hostile media environment and the 24-hour news cycle, it is imperative that councils curate a media response to any unwelcome media attention. The time has passed when the best approach is to simply ignore a story or “wait for the storm to pass”.

When serious allegations are made (whether they are founded or not), councils should inform the public of prompt action they are taking and keep any investigation transparent. Where appropriate, councils should also consider releasing a public statement of support for employees. It is becoming more common for councils to hire public relations “crisis managers”, who can help them get in contact with media outlets and curate public messages, including positive stories to change prevailing sentiment.

Releasing investigation outcomes

If allegations against council are serious, internal or external investigations may be needed. Often, councils select a senior person to conduct them, or engage specialist investigation companies or lawyers.

A decision should be made early whether any subsequent report is for internal use only or for external publication. This will frame the approach to the investigation, including privilege and confidentiality over relevant documents, and the content of the report itself.

During the investigation, councils should be conscious of:

1. Recordkeeping: It is important for all records to be carefully maintained, especially when the public may request access to them under the GIPA Act, and when some of the documents may be privileged or confidential.

2. Reporting: If the allegations are sufficiently serious, it may be necessary to report the allegations to government authorities and NSW Police.

3. Ongoing training and oversight: Officers and employees of Council should be provided ongoing training about the procedures involved in the investigation process. This will help ensure that everyone is clear about their obligations, reduce the risk of miscommunication, and reduce staff anxiety.

Managing Councillors and employees through the process

Councils are obliged under work health and safety legislation to safeguard the physical and psychological wellbeing of their officers and staff. Anyone named or readily identifiable in media stories will understandably feel anxious and stressed. Investigations, which often involve interviews by external persons, can be confronting and burdensome. Councils should consider procedures to make the process as transparent as possible and to remove uncertainty. This should include access to an employee assistance program, nominating managers or personnel to routinely check on affected employees, and keeping employees well informed of any review and investigation process.

 

Author: Gavin Stuart