Lets face it – politics and social media can be risky mix. Hardly a day goes by where a politician (either local or international) isn’t involved in an online scandal or social media pile on. In recent times, the most famous has been the banning of the former President of the USA from social media platforms.
Risks to local councillors
At a local level, two legal decisions in recent years have highlighted the potential risks to local councillors being online. These cases have shown that:
- councillors may be exposed to personal liability for commenting on a defamatory post on Facebook,
- 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. We explain how councillors can manage the risks of defamation liability and misconduct when carrying out their roles.
Potential defamation liability
In the Supreme Court decision of Bolton v Stoltenberg  NSWSC 1518, the former Narrabri Mayor was awarded $120,000 in defamation damages over a Facebook page operated by a ratepayer activist. This page, known as Narri Leaks, had likened the former Mayor to Harvey Weinstein.
The case involved a number of posts from 2015 and 2016. The Court found the former Mayor was repeatedly defamed on the page. The operator of the page was a former town clerk (now known as a General Manager). Ultimately, he 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. This is 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 social media 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.
In another 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. This is a particular risk on social media platforms such as Facebook.
What can councillors can do to mitigate these risk?
Councillors can follow some simple guidelines to mitigate these risks – this includes being respectful, accurate and open-minded when online.
To support councillors in this space, we offer a tailored workshop on the ethical and effective use of social media. This workshop unpacks our three golden rules and gives councillors practical tools to avoid the potential pitfalls.
For more information about our workshop, please contact us:
T 0421 180 881