Employer liability for employee defamation

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With the introduction of the internet and email communications, as well as mobile telephones and the resultant use of text messaging, we live in a communications era unparalleled in previous times. Today more than at any time in history we have seen a massive increase in both written and oral communications and this is especially so in the world of commerce and industry.

The email has rapidly become the preferred means of the bulk of business communications throughout the world. To a lesser extent text messaging has also become a vital tool in business communications particularly with the introduction of Blackberry’s and I-phones. These modern forms of communication offer enormous advantages in day to day commercial dealings due to the immediacy of written forms of communication. Thanks to the internet, communications are now virtually immediate. However, with these more immediate means of communication has come some increased risks. Whereas once there was time to consider ones position and give a considered response in the sometimes explosive situations that do from time to time arise in commerce, there now is a much greater demand for immediacy in communications, particularly those of a written nature. Consequently, there are far greater risks of miscommunication and sometimes defamatory statements.

At the push of a button, written email communications can be communicated to vast audiences. The question that therefore arises is what liability do employers have for the defamatory communications of their employees?

 

Vicarious liability

As a general principle an employer is vicariously liable for the acts or omissions of his employees. Vicarious liability is defined as:
‘The liability imposed on one person for the wrongful act of another on the basis of the legal relationship between them, such as that of employer and employee.’
Just as in certain circumstances an employer will be liable in negligence for the acts or omissions of an employee, an employer can be held liable for the defamatory statements of an employee.

 

What constitutes defamation?

In order to evaluate their circumstances employers need to have some basic understanding of what constitutes the tort of defamation. The word defamation is a collective term encompassing both libel (written defamation) and slander (verbal defamation).

The essence of an action for defamation is the publication either in writing or orally of defamatory material to one or more persons. There are three essential elements necessary in order to establish a cause of action in defamation. The words complained of must be defamatory and must have been published to at least one other person other than the Plaintiff. Thirdly the Plaintiff must be able to be identified from the words complained of. It is irrelevant whether or not the words were intended to be defamatory.
Words are said to be defamatory when an ordinary and reasonable person would interpret them as having the tendency to cause damage to the reputation or standing in the community of a person or other legal entity.  Put another way the test is “would ordinary, decent folk in the community think less of” the person or entity, the subject of the words. There is no need to establish that the utterance or publication of the defamatory words has actually had that effect. If the words have the tendency to defame another, damage is presumed.

Having established that the words published by an employee are defamatory is not however the end of the matter. The often more complex question is, whether or not the publication is defensible. In certain circumstances the law will excuse the utterance or publication of otherwise defamatory words. Truth for example, is a defence to an action for defamation, although for this defence to be successful the defamatory imputation (i.e. accusation) alleged by the Plaintiff to arise from the words must be capable of strict proof. In other words a truth defence will not succeed on proof of mere hearsay, gossip or rumour. Other defences such as contextual truth, fair comment, qualified privilege and others may also be relevant.

 

An employers liability

With a rudimentary knowledge of what might constitute a defamation, employers are then in a better position to establish whether they may be vicariously liable for the defamatory statements of their employees. Clearly newspaper companies and other media outlets employing journalists and other editorial staff are liable for the words published by their employees. This however is not the only form of employment that will render an employer potentially liable in defamation.

The question in all cases is whether there is sufficient connection between the employment and the defamatory publication. If an employee has ostensible authority to communicate with others on behalf of an employer and the publication is made during the course of or incidental to that employment then, subject to any defences that may be available, an employer will be potentially liable.

In the High Court decision of Colonial Mutual Life Assurance Society Ltd  v The Producers and Citizens Co-operative Assurance Co of Australia it was held:

‘…we apprehend that one is liable for another’s tortious act “if he expressly directs him to do it or if he employs the other person as his agent and the act complained of is within the scope of the agent’s authority”. It is not necessary that the particular act should have been authorised: it is enough that the agent should have been in a position to do the class of acts complained of….And if an unlawful act done by an agent be within the scope of his authority, it is immaterial that the principal directed the agent not to do it.’

 

Therefore, where an employee acting within the scope of his/her employment publishes a defamatory matter an employer may prima-facie be liable. Ultimately, liability will be determined by reference to the question as to whether there is a close connection between the employment and the publication, whether it be authorised or not.

Even if an employee publishes defamatory matter outside the scope of his employment an employer may still be found liable if it later adopts or ratifies the words of the employee.

 

Rostron Carlyle

 

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances."

 

 

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