Social media – risk of defamation damages and misconduct
Two recent legal decisions highlight the potential risks to councillors being online, particularly on social media platforms such as Facebook. These cases have shown that:
(i) Councillors may be exposed to personal liability for commenting on a defamatory post on Facebook; and
(ii) Care needs to be taken when posting on social media, even when posting in a personal capacity.
In this article we explore these decisions in more detail and explain how councillors can manage the risks of defamation liability and findings of misconduct when carrying out their roles.
Risk of defamation liability
In the recent Supreme Court decision of Bolton v Stoltenberg  NSWSC 1518 the former Narrbri Mayor was awarded $120,000 in defamation damages over a Facebook page operated by a ratepayer activist who had likened him to Harvey Weinstein.
The case involved a number of posts from 2015 and 2016 on a local Facebook page known as Narri Leaks. The Court found the former Mayor was repeatedly defamed on the page. The operator of the page, who was a former town clerk (now known as a General Manager), was ordered to pay significant damages, interest and legal costs.
Notably, the Court also found that a local councillor was liable for one defamatory post because she added a comment which said “Anyone else agree about getting ICAC and The Minister for local government involved need to like this“. This individual councillor was ordered to pay $10,000 damages to the former Mayor.
The decision highlights that councillors may be exposed to personal liability for their conduct on Facebook. In addition, significant damages can be awarded for defamatory comments made on social media. Local councillors need to be aware of this risk and take care when posting online.
Risk of misconduct online
In another recent decision in the NSW Civil and Administrative Tribunal, a local councillor was found guilty of misconduct for a Facebook post (Office of Local Government v Shelley  NSWCATOD 103). This post was made on a Facebook page which he administered in a personal capacity.
Importantly, the Tribunal found the councillor guilty of misconduct, even though the Facebook page had a disclaimer which said “all views… are personal and as a ratepayer and not in any official capacity or otherwise as a councillor”.
The Tribunal rejected the argument that the councillor was not acting in an official capacity when the posts were made, noting that:
The Facebook post was inextricably linked to Clr Shelley’s work as a councillor and the carrying out of his functions as a councillor.
This is obvious by the very nature of the publication, which was a posting of the very speech, virtually verbatim, that he made in the council chamber the day before.
The Tribunal formally reprimanded the councillor for making allegations of corruption and conflicts of interest at a council meeting, and then republishing them on the Facebook page.
Following this decision, the Office of Local Government warned councillors to be cautious in their use of social media. The decision highlights the difficulties councillors face in separating their personal lives from their political personas, particularly when engaging online on social media platforms such as Facebook.
What can Councillors can do to mitigate these risk
We have previously written about how councillors can manage these risks of being online – you can read our tips in this earlier article.
We also now offer a tailored workshop for councillors and Council staff to equip them with the skills and knowledge to ethically and effectively engage online.
For more information about our workshop, please contact Emma Broomfield who is an experienced Code of Conduct reviewer, lawyer and nationally accredited mediator.
Director – Legal, Governance and Mediation
T 0421 180 881
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