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Defamation update

Defamation update

Defamation update

Friday 15 September, 2017

Nobody wants to have to file a defamation action any more than they want to be served with one.  Defamation litigation can be stressful, time-consuming, uncertain, and costly. 

Local body authorities and politicians need to be particularly mindful of defamation law. In this update, we:

  • outline the factors that contribute to this need;
  • comment on some relevant developments in defamation law, in relation to social media liability and the defence of qualified privilege; and
  • set out some common-sense ways that local bodies can manage their defamation risk.

Risk factors

First, local authorities do contentious work with a high level of public interest, and a high degree of public scrutiny.  This means that elected members and Council staff frequently face criticism in both the mainstream media and social media. This criticism may be unwarranted, and may not always be presented in a fair and balanced way. The line between appropriate political discussion and defamation can be hard to define. 

Next, there is the fact that officials and elected members will frequently be called upon to speak publicly on contentious issues.  More and more, this is occurring in social media as well as in mainstream media. 

Finally, local authorities and elected members will often control social media accounts that enable third parties to leave public comments and make public posts, with varying degrees of administrator control.  These pages have become important tools for information-sharing and engagement with the community but may leave local authorities exposed to inappropriate comments, whether by those responsible for the social media site or by third parties.

Relevant developments

Social media hosts:

A “host” of a social media (or other web) page will potentially be liable for defamatory statements made on their sites by third parties if they knew of the comments and failed to take them down after a reasonable time, provided that the circumstances suggested that the host was taking some responsibility for comments on the site. It is not sufficient to show that the host ought to have known that defamatory comments had been made. 

A social media host may also be liable if a commenter repeats something the host has said or if they have “endorsed or adopted” another party’s statements.  This may apply where, for example, a news article is linked to or shared by the host.   In a recent case in Switzerland, even “liking” defamatory posts has formed the basis for liability. 

Lastly, we note that social media hosts face potential liability for third party comments under the Harmful Digital Communications Act 2015.  While we do not expect this legislation to apply to most day to day engagement on local authority social media sites, it is important to be aware of its potential application, and to follow the correct process for responding if a complaint is made.  

Qualified privilege:

A defence called “qualified privilege” exists where a person who makes a communication has a legal, social or moral duty to make the communication and the recipient has a corresponding interest in receiving it.  

The privilege is “qualified”, meaning it will be lost if the maker of the communication has taken “improper advantage” of the privilege.  This is a particular risk in the age of social media, where content can spread quickly. 

The New Zealand Courts have recognised a defence of “qualified privilege” as protecting genuine political discussion.  The boundaries of this defence, are uncertain.  At the time of writing it is likely that qualified privilege will protect discussion about the character and conduct of elected members of local authorities, but will not apply to speech about employed officials, including senior civil servants.  However, as illustrated by two recent cases, there is potential for the defence to be expanded:

  • In Hagaman v Little [2017] NZHC 813 the Court recognised a qualified privilege in statements made by the Leader of the Opposition, and commented that the categories of qualified privilege “are not closed”. 
  • In the case of Durie v Gardiner [2017] NZHC 377 the court found that the defence of “public interest matters” or “neutral reportage” could apply in NZ.  This would expand the existing defence of qualified privilege, as “public interest” is wider than “political discussion” though it is constrained by the requirement that the journalism be reasonable or responsible.  It remains to be seen if a case is taken to the appellate courts and the defence is further developed.

What can local authorities do?

We recommend that our local government clients:

  • provide defamation law training to new elected members and senior employed officials;
  • develop social media policies and guidance (as appropriate) for elected members, staff, and those who have administrator rights to organisational social media accounts;
  • consider implementing comment policies for social media pages.

We have since provided an update as the law has developed - view this here.

Please contact James MacGillivray or Kate Cornegé if you want to learn more about the issues discussed in this article.