The defamation risk of safety alerts

Out-Law Guide | 12 Apr 2013 | 5:01 pm | 7 min. read

This guide was last updated on 12 April 2013.

Safety alerts are often issued by companies when an accident or incident happens that threatens workers' safety. They are often circulated from company to company, sometimes informally and sometimes in a more structured way by trade bodies.

If you write or forward a safety warning that makes claims about a product, process or piece of equipment you should be aware that your warning could be defamatory. If it says things about that equipment that turn out not to be true you and your company could be sued for defamation.

What is defamation?

Though no precise definition exists, defamation is generally understood to result from any statement which is likely to lower a person or company in the estimation of right thinking members of society.

In other words, if you unfairly criticise someone who does not deserve that criticism, and the criticism causes them harm, whether by damaging their reputation or affecting their sales, then they might be entitled to sue the person who criticised them.

Sanctions will apply equally against people who originated a statement and those who repeat it.

Privilege

There are circumstances in which the interests of freedom of speech outweigh the right of any individual to their reputation.

"Absolute privilege" arises in relation to the parliamentary and judicial proceedings. "Qualified" privilege relates to occasions on which a statement is made, not to the persons or to the nature of statements. It is for the court to decide whether or not the occasion is privileged. The law has taken the stance that in a situation where someone makes a statement in response to a legal, moral or social duty, then he should be protected in what is stated to the extent that he has been motivated by that duty rather than malice.

So if the statement is made in such circumstances then it is presumed that he is not motivated by malice then anyone taking action based on the statement must prove that malice was the motivator. It is the circumstances in which a person makes the communication rather than the nature of the communication or status of the communicator that creates the privilege.

For the privilege to exist there must be reciprocity, meaning that the person to whom the statement is made must have an interest in receiving it and that interest must be more than simply a passing curiosity.

So this is relevant if you have a contractual obligation to notify the employer under a construction contract of health and safety incidents. This legal duty is a duty of care to protect the health and safety of employees and others.

The Health and Safety Executive (HSE) says that qualified privilege exists: "where the person who makes the communication has a duty to its recipients and they have an interest in receiving it (e.g. where you have sought to publish a letter containing implications for public safety)…"

This could, then, cover an alert sent to or by HSE; to the members of an industry forum, or to parties who regularly exchange safety information.

Qualified privilege is not an absolute defence. You would still have to prove that the statement is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.

Those responsible for the statement can claim that the statement is justified. To do this they must ensure that a safety bulletin contains only facts, rather than speculation. However, provided that the content of the bulletin is true then this is a claim they could make in their defence.

Third party bulletins

For safety bulletins produced by third parties which you must distribute once you have received them, there is a defence potentially available against a defamation claim.  

You would need to show that you were not the author of the allegedly defamatory material and that you took reasonable care in distributing it, meaning you only sent it to those parties with whom you shared a reciprocal relationship as regards safety bulletins.

You should also ensure that if you receive for further distribution any bulletins that may be defamatory you should liaise with the party which sent you the bulletin regarding your concerns. Otherwise you may not be able to rely on the defence that you did not know and had no reason to believe that the bulletin contained defamatory statements.

Examples

Here are some examples of safety bulletins.

Example one

"Although the event is still subject to investigation, the most likely immediate cause(s) of this incident appear to be that petrol was able to escape from its tank, due to a defective filler cap and/or the fuel filler cap had not been secured correctly, following the refuelling of the saw."

The reference to the "defective filler cap" is not ideal as it is clearly not known whether there was a defect in the filler cap, and investigations were still ongoing into what caused the accident.

This does amount to speculation – a defective filler cap and improperly secured filler cap are two completely different things. Including both in the bulletin shows that the author did not know what the cause of the accident was.

This is, though, unlikely to be a defamatory alert because it does not actually say that the cause was a defective filler cap. But being on the safe side, ending the sentence after "able to escape from the tank" and perhaps continuing "the cause of this is currently unknown" would eliminate the potential for a defamation action.

Example two

"Whilst cutting the final 40mm diameter rebar on a cage with an Brand X saw in the position depicted above, the saw has jammed in the cut and violently kicked back at the operative causing him the injury you see above."

This alert provided information on potential risks whilst using rotating disc tools. It mentioned the company, 'Brand X', which made the saw involved with this particular instrument but there is no implication that there was anything wrong with the saw and the focus is on ensuring that operatives of rotating saws are properly trained and aware of the risks involved in using such equipment. While there are no indications on the character of Brand X or its products, there is no reason to mention the brand name in this case and the alert would have been safer without this information.  

Example three

“In a recent incident on one of our sites an operative was injured when a breaker being detached from an excavator fell on his foot. The breaker was attached to the machine by a manual quick hitch. As a result [we] are issuing advice on the use of manual quick hitches. An investigation by a plant specialist into a recent incident prompts the following advice…..”

This is not defamatory - it does not mention the product or manufacturers by name and gives factual statements rather than speculating as to flaws within the product.

Example four

"The HSE are involved and have taken away all evidence for examination. At the time they said they had not heard of any similar instances. However it has come to light that these cans have burst although the reasons for this are neither known nor documented. Cans bursting whilst sitting have been reported. If stored in direct sunlight or near sources of heat the material inside the can could expand resulting in a catastrophic failing of the container. The Brand Y data sheet offers no warnings against bursting."

This section of the bulletin ignores the first thing that university students are told about safety alerts: always cite your sources. It is very vague. If there have been other incidents involving this product they should be the subject of their own bulletin or described more fully.

This could have been better expressed as below:

"The HSE are involved and have taken away all evidence for examination. At the time they said they had not heard of any similar instances. The matter is still under investigation. However, at this time it is recommended that cans should not be stored in direct sunlight or near sources of heat."

This gets this message across with much less risk.

Practical tips

Defamation arises from the lowering of a person in the estimation of society generally. There can therefore be no defamation if a statement does not explicitly or implicitly identify a person or company. There remains no liability.

A safe route from a liability perspective could therefore be to omit any reference to brand names or companies in safety bulletins wherever possible.

If a safety bulletin concerns a problem with a specific product the bulletin should stick to stating facts and not contain anything which strays into opinion or speculation.

If you are receiving bulletins prepared by third parties and therefore you do not have any control over their content and if you have any concerns about them, avoid passing them on. If you do have to pass them on then it is likely the defence of qualified privilege in terms of the contractual duty would be available.

For new contracts it would be wise to include insofar as reasonably practicable a provision whereby you are not obliged to pass on any safety bulletin if you consider it to be defamatory.

When drafting alerts:

- do no speculate

- do not guess

- do not offer opinion

- stick to the facts

- keep it short

- be aware of privilege

Communication of health and safety information is clearly an essential element of effective health and safety management, and safety alerts can be a very powerful tool. But remember that their purpose is to cascade essential information which needs immediate attention.