Employee newsletters

Can an employer be held responsible for the contents of an employee newsletter written by employees?

Stuart Rudner
Question: Our company recently started an employee newsletter. There has been some concern in management about the content of the newsletter, and who is responsible if something libelous is said about another employee, even in a joking manner. Can an employer be held responsible for the contents of an employee newsletter written by employees?

Answer: Like most legal issues, much will depend upon the specific facts of each case. Where allegations are made against an employer due to the content of a newsletter, key factors include the degree of control, if any, exerted by the employer over the content of the newsletter, and the actions of the employer upon becoming aware of any potentially offensive content. However, the simple answer is that yes, an employer can be held responsible for the contents of a company newsletter.

One must commence the analysis of this issue with an understanding of the fact that, generally speaking, an employer is responsible for the acts of its employees which are carried out in the course of their employment. In this context, one would have to consider whether the employees writing for and publishing the newsletter did so as part of their job, or whether it was at their own initiative. If it was a part of their duties, then one would also have to consider the specific instructions given to the employee(s) regarding the content of the newsletter.

Vicarious liability on the part of the employer can be found where the company was responsible for the publication, having participated in or been involved in some way with the defamatory information. The degree of involvement of management, and the degree of control exerted, would be important factors in determining whether corporate liability will be found. Even if the employer was not involved in the preparation or publication of the offending publication, an employer may be found liable if it became aware of the existence of the offensive publication, had the authority to remove it, but allowed it to remain. An obvious example would be the failure to remove the publication from a company bulletin board, or to discontinue its distribution.

One of the potential defences to an allegation of defamation is known as a “qualified privilege”. This is associated with certain types of intra-company documents, such as performance reviews. However, even in that context, the statements made must be based upon an honest belief in their truth. It is unlikely that a malicious comment made in a company newsletter would fall within the ambit of this privilege.

Employers that want to have a newsletter should maintain strict control over the content, and avoid any content, including jokes, that might be considered to be defamatory, discrimination, or otherwise offensive. In addition to avoiding potential legal liability, this would seem to be a more prudent practice from a human relations perspective.

Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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