On the basis of current common law considerations there are only 3 essential elements that need to be proven by a plaintiff in order to establish a prima facie cause of action for defamation. Firstly the material complained of must be proven to have been published, that is it has been communicated to a third party; secondly it must identify the plaintiff; and thirdly it must be shown to be defamatory or in other words, have a tendency to discredit the plaintiff in the eyes of right-thinking members of the community.
With the introduction of the proposed amendments to the Defamation Act there will however now be a fourth element that a plaintiff will have to contend with or at least be in a position to argue.
Under the Defamation (Model Provisions) and Other Legislation Amendment Bill 2021 currently before Parliament, in addition to the three elements as detailed above, it will be necessary for plaintiffs when issuing proceedings, to be in a position to establish that as a consequence of the publication they have suffered or are likely to suffer serious harm to their reputation.
Section 10A(1) of the Bill provides:-
"10A Serious harm element of cause of action for defamation
- It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person".
Under the proposed changes the court or indeed a party will be entitled to seek the determination of the question as to whether the plaintiff has in fact suffered serious harm as a consequence of the publication. The stated purpose of this provision is to seek to reduce or eliminate 'trivial, insignificant and vexatious claims'.
On the hearing of such an application, whether as a preliminary matter or during the course of the trial itself, in the event that a plaintiff is not able to prove that he or she has or is likely to suffer serious harm as a consequence of a publication then, a court will have the power to dismiss the proceedings. Needless to say in cases involving the publication of allegations of serious criminal or other misconduct, where serious harm can be inferred the above provisions are unlikely to arise either as a threshold question or otherwise.
Certain corporations no longer have rights of action for defamation. However, those corporations that still have such rights (excluded corporations), will, under these new provisions be required to prove that the defamatory publication complained of has caused or is likely to cause the corporation serious financial loss.
Once promulgated it of course remains to be seen how the courts are likely to rule on or determine questions as to serious harm. Similar provisions were introduced into the laws of England and Wales and came into force on 1 January 2014. As yet there does not appear to have been any definitive test established as to what constitutes serious harm.
What does seem apparent from cases that have been considered is that factors such as the extent of publication, the gravity of the allegations, the publication of apologies and retractions and generally the circumstances of publication ie involving questions such as proximity, are all matters that Australian courts are likely to take into consideration in the determination of these matters.
In so far as corporations are concerned it is likely to be a question of the forensic examination of relevant financial records.
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.