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HHG Legal Group
Authors: Julia McCullagh & Murray Thornhill

In October 2018, a former Mayor from country New South Wales was awarded more than $100,000 in damages after a local resident defamed him in a number of Facebook posts -- accusing him of corruption and intimidation. A fellow councillor was also found liable in relation to one defamatory post.

Earlier that same year in Western Australia, the Shire of Capel caused controversy by contributing to the Shire president and the former chief executive officer’s legal expenses when they initiated defamation proceedings against four residents. These residents had posted comments on the Facebook page of the local newspaper after it had reported on an investigation by the Department of Local Government.

These and similar examples highlight the increasingly complex role that social media plays in defamation and the need to strike a balance between protecting freedom of expression and an individual’s right to protect their personal reputation.

Given the passion that community members and elected local government representatives often feel about local issues and the ease with which individual views can be shared on social media it is unsurprising that local government disputes often result in defamation proceedings.

There is no Australian equivalent to the American First Amendment right to freedom of speech. However, there is an implied guarantee in the Australian Constitution of freedom of communication in relation to public and political discussion. The High Court of Australia has interpreted common law rules, especially with regard to defamation, so that they align to the requirements of this implied freedom. This constitutional freedom extends to public discussion on the performance, conduct and fitness for office of Members of Parliament.

“Fair comment” is a defence often used in defamation actions arising out of public and political disputes. Under this defence, whilst the facts upon which the comment is based must be substantially true, the comment itself needs to only be honestly held by the defendant and relate to a matter of public interest.

There is a further aspect to the issue when social media is involved. Traditionally the law of defamation was an instrument for settling personal and family disputes about private reputation and honour. In the twentieth century the law tended to focus on disputes between the mass media and figures already in the public eye. The advent of social media has seen a return to defamation disputes involving private individuals. Australia's defamation law does not differentiate between a publication made by a national newspaper and one made by an individual, and makes no mention of internet or social media. The law does not recognise that an individual member of the community commenting on the activities of an elected representative via Twitter or Facebook cannot draw on the experiences and resources of a journalist working in traditional media.

What has not changed is that the law of defamation is concerned with the protection of reputation. That is why, as a general rule in Australia, a corporation does not have a cause of action for defamation. This general rule also applies to government authorities according to Ballina Shire Council v Ringland. In that case Ringland, a rate payer, accused the Council of surreptitiously pumping sewage into the sea. While the court held that a local council has no right to an action in defamation, it awarded Ballina Shire Council $800 on the basis of its alternative claim of injurious falsehood. “Injurious falsehood” relates to a malicious false publication which injures a person’s business or goods, as distinct from disparaging that person’s reputation. $800 was the cost to the council of calling an emergency meeting to deal with the allegation. The rationale for this decision was that a local government authority, like other corporations, has an interest in protecting its commercial activities, economic interests, and property rights.

In dissent, Kirby J held that in the circumstances of Mr Ringland’s attack on the Council, the injurious falsehood claim was no more than a defamation claim in a different guise. Moreover, his honour considered the suggestion that the Council suffered some loss thereby was “ludicrous.” His Honour held that the claim was also barred by Mr Ringland’s constitutional right to freedom of expression.

Importantly, in Ballina Shire Council no individual member of the Council sued Mr Ringland. Curiously, while actions for injurious falsehood do not appear to have been used much, if at all, by local government authorities since Ballina Shire Council in the 1990s, individual council members regularly resort to defamation actions to protect their own reputations.

This raises the question of where the boundary lies between attacks on personal and official reputation. It is not always easy to distinguish between the two. Criticism of how an elected official is carrying out their role can easily stray into defamatory attacks on their personal reputation and character. It also seems unlikely that a defamatory attack on a council body as a whole could occur without there being a simultaneous tarnishing of the reputation of the councillors as individuals.

The continuing evolution of social media makes it difficult for the law to keep pace, and to find the right balance between freedom of expression and protection of reputation. We expect that this lagging of the law, compounded by the pace of technological innovation, will lead to an increase in the incidence and size of defamation claims involving local elected officials.