In Western Australia, if an individual’s reputation is tarnished by another who has published untrue statements about that person, the individual with the tarnished reputation may have a cause of action for defamation.
‘Publication’ is broadly defined in the Defamation Act 2005 (WA) to purposefully include all written forms of communication as well as speech.
If a person feels that a comment made by a councillor or council officer has negatively impacted their reputation, that person may claim they have been defamed. Defamation claims against council, councillors or council employees can fall under LGIS Liability Protection where the comment is made in the course of local government business or within the scope of a councillor or employee’s duties.
You have deframed a person if you make a statement which:
The statement in question must be:
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Whether an imputation is defamatory is to be determined by reference to general community, moral or social standards, presumed to be uniform and common to society generally and not by reference to sectional attitudes. If careful thought is not always given to the choice of words in a publication, the risk of defaming someone is high.
Written forms of communication which may be defamatory include:
Due to the internet providing many social media platforms for individuals to publish statements that are potentially defamatory, defamation has become increasingly pursued. The law of defamation does not hold the internet platform, service provided or content host liable for defamatory statements published on their platform without their knowledge. That said, the courts have recently issued orders against various service providers ordering them to reveal the identity of anonymous postings of defamatory publications. However, if an individual copies and pastes, emails, or links to defamatory information, they are considered a publisher for defamation actions.
Council executives and elected councillors ought to be acutely aware that whilst using their private accounts, they may be deemed to be representing the council when expressing their views and opinions online. The council’s own social media pages can be held to be the publisher of defamatory material and council’s should regularly check those pages to ensure any potential defamatory material is promptly removed.
The more people that receive the publication, the larger the potential injury caused by a defamatory imputation and, consequently, the larger the potential damages awarded to the injured plaintiff. As such, council Members should be extra vigilant with those publications likely to reach a large audience. The LGIS Scheme has paid out in excess of half a million dollars for defamation claims in the past.
Even though a publisher might make a statement or otherwise publish information that seems defamatory, they may have a defence or excuse. These include:
Truth – otherwise called justification, where the publication was true, there will be no defamation.
Contextual truth – the publication was substantially true so any imputation could not have harmed the aggrieved.
Qualified priviledge – the publication may have been defamatory, but the publisher was obliged to publish it for a legal, moral, or social reason and so is excused from liability.
Absolute priviledge – no action for defamation will lie if the publication was made during a parliamentary debate, in a court, or tribunal judgment.
Public document – if the defamatory content has also been published in a public document that is a parliamentary debate, tribunal or court judgment or other public government publication, no liability will lie for republication.
Fair report – a publication in a fair report of public concern is not defamatory.
Honest opinion – a publication which is not read as a fact, but merely as someone’s honest opinion is not defamation.
Innocent dissemination – no liability will arise where the publication distributor did not know about the defamatory content, or did not write, create, or control the content or what was said.
Parody – a publication which is obviously a parody or satire is not defamatory.
Triviality – where a publication is too trivial or inconsequential to cause harm, the publisher will be excused from liability.
As a result of the very nature of a council’s public function, elected councillors, council executives and council employees are predisposed to being at high risk of defamation allegations.
Defamation claims can be difficult and expensive to defend. Investing in training and materials to avoid a defamatory publication being made is worthwhile and can provide protection for council’s own reputation.
Please note that liability covers do not extend to fund legal action taken to pursue a defamation claim against a party for defamatory comments made about them, for example if a Councillor or officer is defamed by a member of the public. The cover applies to provide protection and if appropriate, to defend claims.
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Risk Matters, via this website, is designed to keep members, their staff and elected members informed on topical risk management and insurance issues and LGIS programs and services.
