Mayor John Bowler says the level of damaging and threatening comments has escalated. (ABC Goldfields: Jasmine Bamford)
A council in regional Western Australia is the latest to join a growing list of local governments around the country to allow ratepayer money to fund defamation action against members of the public.
- Mayor defends decision to allow access to ratepayer funds to launch defamation action and obtain restraining orders
- The council says the volume of abusive comments is escalating and becoming more personal
- Social media lawyer says many people wrongly believe they have an enshrined right to freedom of speech
The Kalgoorlie-Boulder council has voted to allow elected members and staff to access funds for legal action when a constituent’s comment was defamatory and targeted the person.
Funds can also be used to help employees obtain restraining orders.
The council said the volume of abusive and defamatory comments was escalating and becoming more personal, particularly on social media.
“I can put up with a lot, and I have … I think I’m defamed almost daily in this town and it upsets me that it is so vitriolic,” chief executive John Walker said.
“But there are some things that have happened that go beyond that … some of the threats, some of the comments, need to be stopped.”
Damaging comments made on social media can be defamatory and lead to legal action. (Unsplash: Joshue Hoehne)
Mayor John Bowler said while he welcomed criticism as a democratic right, the policy change was needed.
“When there are out-and-out lies, threats of violence and hate speech that might precipitate violence, something has got to be done to stop it,” he said.
While they did not detail specific remarks, one councillor said a recent Facebook comment referred to staff as “just a bunch of greedy thieves, lining their own pockets”.
‘Average’ person not exempt from defamation
High-profile defamation cases, like actress Rebel Wilson’s defamation payout from Bauer Media last year, make the headlines.
But in an academic article this year, NSW District Court Judge Judith Gibson said “ordinary members of the public form the majority of the parties in defamation”.
Judge Gibson also noted that defamation court cases arising from social media comments were on the rise, while claims against media organisations were falling.
Rebel Wilson says she is “proud” that she saw the legal case through to the “bitter end”. (ABC News: Niki Burnside)
Paul Gordon, a social media lawyer at Wallmans Lawyers, said the “average person” did not understand what defamation was and “people think they can post anything online and get away with it”.
“If I communicate something to you directly and there’s no-one else to hear it, I can say what I like and it’s not defamatory,” he said.
“But the moment one other person can hear or read or see what I’ve said, then it is defamatory if it meets all the other tests.”
What is defamation?
To prove defamation, there are a few factors that must be present: the victim must be identified, the matter must be published (this includes social media), and the matter must be defamatory.
A defamatory comment is something that will lower a person’s reputation.
If a person is sued for defamation, they may be able to defend themselves by proving what they said was true or an honest opinion.
“If I’ve claimed that you have embezzled funds and I have no evidence of that whatsoever, then I’m going to have a hard time in proving what I said is true,” Mr Gordon said.
“If I said, ‘I don’t think you’re doing a good job’, I don’t need to prove whether or not you’re doing a good job, that’s simply my opinion and that’s not defamatory.”
Under defamation law, organisations and councils as a body cannot sue over general damaging comments.
However, individual employees can sue if they have been identified through name or description.
But a New South Wales case in 1994 found a local government entity may sue for “injurious falsehood”, which is considered an alternative and less common legal path.
Many social media users falsely think they are protected by freedom of speech. (AP: Jenny Kane)
What about free speech?
The constitution does not explicitly protect freedom of expression.
In June, former High Court judge Michael Kirby told the ABC that “Australia has less protection for free speech than any other Western country”, while Judge Gibson said “the term ‘defamation capital of the world’ has been used repeatedly to describe the high number of defamation cases in Australia”.
Mr Gordon said the influence of American culture often led Australians to wrongly believe they had a similar level of protection of free speech.
He said he did not believe the practice of using council funds to launch defamation cases was “unusual”.
“In the current climate, it’s not surprising that there are councils adopting these policies.
“I’ve personally been aware of cases in South Australia and I have heard reports of this in other states.”
Ratepayers funding defamation cases
The newly formed WA Ratepayers and Residents Association said there had been a “discouraging trend” of local governments allowing the use of council money to launch defamation actions.
“I don’t think it’s fair for someone to make false allegations against anyone,” chairman Clive Ross said.
“But for them to be able to launch an action against a resident, using effectively the resident’s own money against them, is simply open to abuse and not something I believe is justified.”
The Kalgoorlie-Boulder council is two months away from an election and Mr Ross said this change was being used “as a weapon”.
Cr Bowler, however, denied it was an attempt to stifle debate, saying that he hoped the legal funds never had to be used and “the mere threat will stop people committing the worst of these atrocities on social media”.
The WA Local Government Association said it did not collect data on these types of policies but was aware of various councils issuing cease-and-desist letters to residents.
Mr Gordon said if defamation proceedings went to trial it could be costly, running into the tens of thousands of dollars.