How new serious harm thresholds could affect defamation cases in Australia - Libel & Defamation

Plaintiffs seeking to vindicate their reputation in court will have an extra element to consider when new defamation law provisions come into effect in Victoria, New South Wales and South Australia on 1 July 2021.

The Model Defamation Amendment Provisions 2020 were developed through the Council of Attorneys General Stage 1 review of defamation laws in Australia. The review, which took place throughout 2019 and 2020, is responsible for a range of changes to our national defamation law model. This includes the introduction of a single publication rule, considered by our team in a previous Insight.

Another key change brought about by the reform is the implementation of a serious harm element, which is also a feature of UK defamation law.¹ This new element requires a party to show that defamatory matter which has been published has caused, or is likely to cause, serious harm to the reputation of a person.

This question can be determined by the judge at any time before a defamation trial commences or during the proceedings. If this element is not met, the judge can dismiss the proceedings.

A harm threshold like this ensures parties do not waste a court's time with spurious or frivolous claims and helps to save court resources for claims where genuine reputational harm has been suffered. Narrowing the scope for defamatory claims also helps to preserve the balance between affording reputational protection and allowing press freedom by limiting the availability of the action to plaintiffs who can prove serious harm.

What does the change mean for plaintiffs and defendants?

It's not new for plaintiffs and defendants to need to consider the kind of harm caused to a person's reputation before bringing, or defending, a claim.

Australia's defamation laws previously provided a defence of triviality. Even when a plaintiff proved a publication was defamatory, this defence protected a defendant where they could show that the circumstances of publication were unlikely to have caused the plaintiff to sustain any harm.

However, this defence was rarely successful. It has now been repealed and replaced by the serious harm element. The element operates differently to the triviality defence by putting the onus on the plaintiff to establish the harm flowing from the defamatory statement is, or will be, serious.

What could 'serious harm' look like?

Where the plaintiff is an excluded corporation which is able to sue for defamation, serious harm is defined as harm which has caused, or is likely to cause, 'serious financial loss' to the corporation.

In the context of individuals, serious harm may be harder to define. In the 2019 UK case Lachaux v Independent Print Limited ('Lachaux'), the UK Supreme Court interpreted the similar legislative requirement. The Court's analysis provides an idea of what this harm threshold could look like for plaintiffs and defendants in our courts.

In Lachaux, the complainant sued three news publishers over various newspaper articles which claimed, among other things, that he had beaten his ex-wife and falsely accused her of kidnapping their son, which put her at risk of being jailed.

In discussing the operation of the serious harm requirement, the Court suggested the following principles:

For harm to be serious, published material must carry more than a 'tendency' to harm a plaintiff's reputation. The plaintiff must prove that serious harm has been caused, or is likely to be caused to their reputation 'as a fact on the balance of probabilities'.
When determining serious harm, the Court can consider more than 'the defamatory meaning of the words'. It can look at 'all relevant circumstances', such as 'evidence of what actually happened after publication'.
Where a statement has a strong defamatory imputation and it has been shared with a wide readership or audience, it may be possible to deduce that serious harm has occurred on an 'inferential' basis.

Against this backdrop, the Court in Lachaux considered each publication individually to see if it met the serious harm threshold. It found the requirement was satisfied where material was published on a large scale in reputable publications.

The Court also found the element to be established where the material was read by people who knew the claimant and where the claimant's reputation may have been seriously harmed in the eyes of those 'whose opinion of him matters'.

Conversely, the serious harm threshold was not met where the complainant and his lawyers took no action to seek the removal of an online article for a year after they learnt of its publication. Justice Warby said this publication could not be considered to have caused serious harm as it was "reasonable to infer from the absence of action that nobody saw a pressing need for vindication".

While it remains to be seen how Australian courts will apply the serious harm test, one of the explanations for its introduction was to reduce the number of claims brought against defamatory social media publications that were only published to a few people. The Court's recognition in Lachaux that the extent of the publication is relevant to seriousness, is a likely signal to the approach that Australian courts will take.

Fewer cases involving limited social media publication may now be brought before the courts.

Footnote

¹Defamation Act 2013 (UK) s 1(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.