Tale 1 – Office of the Independent Assessor – First Ever Misconduct Finding
The Office of the Independent Assessor handed down its first ever misconduct finding on 26 March 2019.
The misconduct complained of involved comments posted by a Councillor on Facebook about another person which included a racist slur. Even though this was a personal Facebook account, the person making the comments identified as a Councillor on their Facebook page.
The complaint was sent to the Independent Assessor as required under section 150P of the Local Government Act 2009 for further investigation and disciplinary action if appropriate.
Fortunately, the Councillor, who made the comments, with no intention to cause hurt or humiliation to the other person, removed the comments from the Facebook post as soon as they became aware that the comments were perceived to be a racial slur against the other person. Also, fortunately for the Councillor, full cooperation was given to the Independent Assessor in the investigation which saved time and cost to the relevant local government which has to pay the costs of investigations of the Independent Assessor.
In this case, the Councillor was required to make a formal apology to the person concerned and also a public admission of the misconduct within one month at a Councillor meeting.
Tale 2 – Defamation - Mayor Sues Ratepayer…and Wins
The Mayor of Narrabri Shire Council commenced legal proceedings in the New South Wales Supreme Court in 2015 for defamation against a ratepayer who, on a Facebook page “Narri Leaks”, made allegations that the Mayor had engaged in corrupt and deliberately dishonest conduct. The decision was handed down in October 2018.
The ratepayer was the former CEO of a number of other Councils and he has also set up the Narri Leaks Facebook page. The problem started with a falling out with the Mayor over the appointment of a woman as the new CEO at the Narrabri Shire Council and it all went downhill from there.
This led to 6 Facebook posts accusing the Mayor of corruption, dishonesty and intimidation and gaining a personal benefit for himself as the Mayor.
In addition, the partner of the ratepayer who was later elected as a Councillor in 2016 was also sued by the former Mayor for defamation because the Councillor commented on and “liked” the Facebook posts.
What is defamation?
In a nutshell, the Court had to decide whether the allegedly defamatory material was published and if so, would it lower the reputation of the person in the minds of right thinking ordinary members of the community.
Defamation involves publication of the defamatory material but publication only need to be to 1 person and publication on the internet only needs 1 person to download and view the defamatory material.
The Court held that the Mayor was defamed and he was awarded $120,000 in damages and payment of legal costs against the ratepayer and awarded a further $10,000 against the Councillor who made further comment on the defamatory posts.
The Judge, although he did not find that “liking” a post was of itself publication of defamatory material in this case, did comment that if by “liking” a post, the material was forwarded to the Facebook feed of another person, that could be taken to be publication because it drew the attention of another person to the defamatory material and could therefore also amount to an action in defamation.
Moral of Both Tales
Be very cautious about what is posted to Facebook both in a personal and work-related capacity. Very little is anonymous on the internet.
Defamatory material on Facebook should be removed as soon as practicable to avoid the material being shared with anyone else.
Good policies around the use of social media by Councillors and Council employees are essential.
How can we help?
The government team at Preston Law are regularly engaged to provide advice and training on social media in particular and we are able to draft appropriate social media and communication policies relevant to your organisation which can reduce the risk of reputational damage for all persons involved with Council.