Today’s correspondent is concerned about
… an increase of volunteer fire brigades (nation-wide) now getting involved in social media [and] what legal responsibilities falls on the brigades for the information posted?
For instance, if the brigade posts every time there is a fire ban, but misses one – is there now an obligation to provide this information? Or if the information provided around legality of when a fire can be lit were to be incorrect?
I understand that each organisation will have its own internal policy regarding social media, but more and more people are looking to social media for information, so when does basic PR become a legal obligation?
Putting aside the legal obligations one can imagine the press after a fire with a person saying ‘we weren’t warned, I checked the Kickatinalong fire brigade web site and it said nothing’. That’s not a good look even if there is no legal impact and even if because, at the time, the volunteer webmaster was out fighting the fire. And is to ensure consistent messaging that the modern mantra is for a ‘single point of truth’ to ensure messaging is consistent. A prudent webmaster may, therefore only put up local good news stories with a link on the webpage ‘For current warnings and bans, click here’. But, assuming that is not how it’s done, what might be the legal outcomes.
Like so many questions asked here (and asked of the law) there is no simple answer, the answer depends on all the circumstances. I think the key question would be (and here I paraphrase the High Court of Australia from the unrelated case of Rogers v Whitaker [1992] HCA 58) I think there could be legal consequences if in all the circumstances of the particular case, a reasonable person would expect to be able to, and did, rely on the information on the brigade website or the brigade was reasonably aware that a particular person was relying on that information.
If a brigade website promised to provide up to date information and did consistently so that locals turn to the brigade rather than the Bureau of Meteorology or the state website for information then that may create an expectation that the information will be correct and up to date and also establish that they rely on that information.
People may know that weather forecasts come for the Bureau and fire bans are imposed at a level higher than brigade so may appreciate that the local website is a ‘mirror’ of those other sites and they really need to look to the BoM or the State Headquarters. But it may be brigades that issue fire permits (see RFS operating ‘out of area’
(February 11, 2019). Even if it were not reasonable to expect a brigade page to be fully up to date with bans, one might reasonably look to the local brigade for advice on whether a fire can be lit. In that case the legal issue would not so much be some action against the brigade, but a person who was charged with say lighting a fire without a permit could argue that he or she had an honest and reasonable belief that a permit was not required because he or she asked, or checked with the local brigade, and got the wrong information but in circumstances it was reasonable to rely on that information. In that case he or she may be acquitted of the offence with which they have been charged.
If someone specifically asks – is there a fire ban today? What is the fire danger rating today? Can I light without a permit today? – then the brigade knows they are being relied upon and they know they need to be correct because it has been brought to their attention that a person is relying on their advice.
Without going through all the questions of whether there is a duty to warn, and whether it was a failure to warn rather than, say the fire, that caused any losses (and those answers depend ‘on all the circumstances’) one cannot say what the consequences would be, if any. Certainly the most likely is that if the brigade page has wrong information about the status of fire bans and the need for permits, a person may be acquitted of any charges related to lighting a fire contrary to a ban.
Conclusion
So, when does basic PR become a legal obligation? When you might reasonably expect that people will rely on the information, and act on it to their own detriment. When the information is more than good news stories there’s an obligation to try and be correct. A cavalier attitude to accuracy will never end well.
Australian Emergency Law 
Hi Michael, just a note of caution about your conclusion that “Certainly the most likely is that if the brigade page has wrong information about the status of fire bans and the need for permits, a person may be acquitted of any charges related to lighting a fire contrary to a ban.” While, as always, the specific facts would be critical, this general conclusion may not be correct in WA (and thus possibly Queensland also) – I can’t comment about the common law states. As wrong as it may feel, in WA such a mistake might well be found to be a mistake of law (and thus no defence) rather than a mistake of fact. See the High Court decision of Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 in which a fisherman was effectively misled by a government agency as to the boundaries of a prohibited area, but was still correctly convicted. Aside from that issue, I agree entirely with your conclusions that care should be taken in this area and pointing people to a central authoritative source would always be best.
Tom, thanks for that very helpful comment. It is true that what I had in mind was the common law defence of ‘mistake of fact’ that requires “an honest and reasonable belief in FACTS which if true would make the act innocent”. Whether the belief formed by a fire brigade website or even an answer that a permit is not required is a belief in fact, or law, would need to be determined. At common law, as with the code states, a mistaken understanding of the law is not a defence.
For further discussion see the brief discussion of the common law defence of mistake in the post at https://emergencylaw.wordpress.com/2019/10/26/immunity-from-criminal-prosecution-for-traffic-offence-by-sa-police-and-emergency-workers/ and also my final comment in the discussion that follows the post https://emergencylaw.wordpress.com/2013/10/10/redblue-lights-in-act-and-nsw/.
The point I was trying to make was the most probable legal outcome of such a mistake was that it might give rise to a defence rather than liability in tort and I still think that’s true but this comment does make the important point that only a mistake of fact, not law, is a defence and sometimes telling the difference can be difficult.
What if we were a bit late updating our local FDR sign and a local person who relied on it for up to date warnings was impacted by a fire on say a “severe “ Day. Would that be the brigades fault ( more specifically the changer of the FDR signs fault) because if that is the case I would prefer to have a sign as you drive in to town that says “ check your app for latest fire danger ratings”
‘Fault’ is the wrong word- as with the post I don’t think it would expose the brigade to liability and I’m not sure what use a person could make of the error. One has to consider what is the point of those signs and what behaviour are they expected to encourage. If the sign said that there was a low/moderate danger on a day of 35 degree day with strong wind where it hadn’t rained for 6 months a reasonable person may conclude that it’s wrong. But if it says the danger is ‘high’ but really it’s ‘very high’ what would a person do where it would be relevant to say ‘but I relied on the sign’? The signs don’t say what fire bans are in place and everyone has to take ‘reasonable care’ not to start a fire and that really depends on the conditions you are in rather than what the sign says. Certainly if there is activity that is prohibited on days of say severe fire danger a person (subject to the observations by Tom above) may be able to say ‘but I honestly believed that it was not a severe fire day because I checked the sign’ and that may give rise to a defence or at least a plea in mitigation but the argument would be that if a reasonable person was going to do a task they knew was prohibited on those sort of days, they would check the official source rather than rely on the sign, particularly if it’s obvious the sign has to be manually changed so anyone would realise that it cannot always be accurate as it must take time for someone to get around and change them.
As with so many questions it depends on ‘all the circumstances’ but I cannot see an issue provided there are honest and reasonable attempts to keep the warning accurate recognising that it takes a person, usually a volunteer, to change them. The better signs, no doubt, are the electronic ones where lights indicate the danger and where I hope they are set centrally and automatically when the fire danger rating changes (but perhaps they’re not and someone still has to turn up and press a button?)
Hi Michael.
As you have said above you don’t think that the above would expose a Brigade to liability, but given as you have mentioned previously in other posts, individual Brigades are not actually legal entities (cannot sue or be sued), can a “Brigade” actually be liable anyway?
The way I understood it, was that any liability within (the NSW RFS for example), would sit with either the Crown (the entity) or an individual member (natural person)?
Would this be correct?
Cheers.
Yes indeed that’s correct but I try not to complicate things too much even if that can lead to error. The question was ‘Would that be the brigades fault …’ and I didn’t want to go off point talking about the legal status of a brigade. But you’re right in most jurisdictions. in some jurisdictions (in particular WA and Qld) some brigades are still seperate legal entities that can be sued but what we’re really talking about is liability of the state. That is certainly the case if you are talking NSW – any liability would belong to the Crown in Right of NSW recognising that there won’t be any liability.