NEWS ANALYSIS
Hawkesbury City Council has declined to identify the particular statutory provisions or individual authorities supporting a letter demanding the removal of comments from the Hawkesbury Gazette’s Facebook page.
Council General Counsel Craig Winn wrote to the Gazette on August 21 concerning comments posted beneath a story about the forthcoming Hawkesbury mayoral election.
The two-page letter said a “significant number” of comments appeared to be defamatory and potentially unlawful and directly targeted Deputy Mayor Sarah McMahon, the general manager and councillors.
Council demanded that the Gazette remove the entire comment thread or, alternatively, all comments it regarded as offensive within 24 hours.
“Should you fail to do so, Council reserves all rights available to it and to the affected individuals, and will, without further notice, refer the matter … to all relevant authorities for investigation and enforcement action(s),” Mr Winn wrote.
The letter did not identify the relevant authorities, the particular enforcement action contemplated or whether Council had been authorised to act for any of the individuals whose personal reputations were said to have been affected.
Gazette seeks clarification
The Gazette subsequently asked Mr Winn to identify the legal basis upon which Council claimed authority to reserve or exercise the personal rights of the individuals referenced in the Facebook discussion, that is, the Councillor and or staff.
It asked Council to provide evidence that it was authorised to act for those people and to identify the authorities and statutory provisions to which its threatened referral related.
Mr Winn responded on August 28 that Council’s original letter stood and required no further explanation.
“Council is under no obligation to answer your interrogatories, furnish legal advice to your publication, or provide evidence of any authority to you or your organisation,” he wrote to the Hawkesbury Gazette Publisher
Mr Winn said Council’s position was consistent with established legal principles, including the liability of a Facebook page owner as a publisher of third-party comments under the High Court’s 2021 decision in Fairfax Media Publications Pty Ltd v Voller.
He also referred generally to Council’s capacity to protect its officers and workers, the administration of its functions under the Local Government Act and its duties under the Work Health and Safety Act.
Council’s response did not identify which individuals, if any, had instructed it to assert or reserve their personal legal rights.
What Voller Decided
The Voller decision arose from comments posted by Facebook users beneath stories published on public Facebook pages operated by media organisations.
The High Court held that the page operators participated in the communication of the comments and could therefore be regarded as publishers.
The decision addressed the legal issue of publication. It did not establish that all adverse, insulting or controversial Facebook comments are defamatory, nor did it remove the need for a claimant to establish the other elements of a defamation action.
The Defamation Act has been amended since Voller.
Section 31A now provides a defence in certain circumstances for digital intermediaries that maintain an accessible complaints mechanism and take reasonable steps to prevent continued access to material following a compliant written complaint.
Whether that defence applies depends on the precise circumstances, including the content of the complaint and the steps taken by the page operator.
Under section 10A, an individual bringing a defamation action must also establish that the publication caused, or was likely to cause, serious harm to their reputation.
Council cannot sue for defamation in its own name
There is a further distinction between Council’s institutional interests and the personal reputational rights of councillors and employees.
Section 9 of the Defamation Act 2005 generally prevents a public body, including a local government body, from bringing a defamation claim in its own name. That does not prevent identifiable councillors or employees from enforcing their individual rights
Individual councillors and employees retain their personal rights and may bring proceedings if allegedly defamatory material identifies and harms them.
Council’s August 21 letter was expressly written on behalf of Hawkesbury City Council. It did not state that Mr Winn personally represented Cr McMahon, the general manager or any other named individual.
It nevertheless purported to reserve rights “available to it and to the affected individuals”.
Councillor says no authority was given
The Gazette approached one councillor who was the subject of comments identified in Council’s August 21 letter and asked whether they had requested Council to take action.
The councillor said "No".
They told the Gazette they had been unaware of the Facebook comment and had not “instructed anyone” to act on their behalf.
They also said they did not regard the comments as anything extraordinary for a person in public life to endure.
The councillor confirmed that they did not consider it a WHS matter and had not submitted a workplace health and safety incident report concerning any comments made by any member of the community.
This response does not establish whether Council received instructions from any other councillor, employee or officer named or referred to in its letter. It does, however, demonstrate that at least one of the Councillors whose interests Council purported to protect had not requested the intervention.
Council has not explained whether its letter was prompted by complaints or instructions from other affected individuals, an internal workplace safety assessment, a decision of the general manager or another Council process.
The Gazette has asked Council to identify who authorised the letter and whether any councillor or employee instructed it to reserve or assert their personal rights. Mr Winn declined to provide that information, saying Council was under no obligation to answer the Gazette’s questions or provide evidence of its authority.
Protecting workers
Council is entitled and in some circumstances required to take reasonable steps to protect the health and safety of its workers, including from workplace psychosocial risks.
That general responsibility does not itself determine whether particular public criticism is defamatory or unlawful.
Nor does it answer whether elected councillors are being represented in their personal capacities, whether public funds are being used for that purpose, or which Council function authorised the demand made to a private news organisation.
Any credible threats, harassment or psychosocial hazards should be assessed and managed under applicable work health and safety duties and Council policies.
The fact that no WHS incident report was lodged by the councillor does not necessarily prevent Council from taking preventative workplace-safety measures. However, Council has not identified any reported incident, risk assessment or particular statutory duty underpinning its demand.
The unanswered question is narrower: what authority Council relied upon when its general counsel purported to reserve the personal rights of unidentified individuals and threatened referrals for investigation and enforcement action.
Some comments raised genuine concerns
Council’s letter identified comments that it said contained serious allegations about named individuals. The Gazette removed or restricted access to comments that could not be substantiated. It has not reproduced those allegations in this report.
Section 31A may provide a defence to a qualifying digital intermediary that maintains an accessible complaints mechanism and, after receiving a complaint that meets the statutory requirements, takes reasonable available steps to prevent access to the material within seven days.
Other comments quoted by Council consisted of insults, political criticism or allegations of bullying and corruption. Whether any individual comment is defamatory depends upon its precise words, context, identification, meaning, factual basis, potential defences and capacity to cause serious reputational harm.
No court has determined that the comments listed in Council’s letter were defamatory or otherwise unlawful.
Questions over public resources
The correspondence raises questions about the use of Council resources to address third-party comments concerning elected representatives.
The Gazette has asked Council:
- who authorised the August 21 letter;
- whether |Deputy Mayor Cr McMahon or any other individual instructed Council to act for them;
- whether Council is funding legal representation for any individual;
- what particular Local Government Act and WHS Act provisions Council relies upon;
- which “relevant authorities” Council contemplated contacting; and
- What investigation or enforcement powers Council believed those authorities could exercise.
Council has declined to provide that information.
The Gazette remains willing to publish any further explanation from Council, Mr Winn, Cr McMahon, the General Manager or any other affected person.
The Gazette also encourages readers to debate public affairs vigorously but lawfully. Political disagreement does not justify publishing unverified allegations of criminal conduct, personal threats or defamatory claims.
Below is the correspondence received from Hawkesbury City Council. The Gazette has redacted names Council published in its correspondence.
