Commencing in July 2021, Australia's defamation laws were amended, requiring the plaintiff to prove that alleged defamatory publications caused or were likely to cause "serious harm" to the plaintiff's reputation. This introduces a new "serious harm element" to a defamation claim.
These amendments came into effect on 1 July 2021 and have been adopted by all states and territories except for Western Australia and Northern Territory.
In this blog, we look at a recent case of Martin v Najem [2022] NSWDC 479 ("Martin v Najem"), which is the first case where the court has considered the serious harm element since the legislative reform in July 2021.
What is defamation?
Defamation is the publication of defamatory matter about a person to a third party that causes serious harm to that person's reputation. The "defamatory matter" can be any communication, including written comments, verbal statements, videos, social media posts and blogging.
You can learn more about what constitutes defamation here.
What is the uniform defamation law?
There are defamation laws in each state and territory of Australia which allow plaintiffs to bring proceedings in the location in which the defamation occurred.
The uniform defamation laws came into effect on 1 January 2006. Each State and Territory of Australia enacted legislation with similar provisions regarding time limitation, award for damages (ie, limits to the amount of compensation awarded), elements of defamation and conduct of proceedings.
What were the elements required to sue for defamation prior to the reforms?
Prior to the reforms coming into effect, to bring proceedings for defamation, the plaintiff had to prove three elements to be successful:
- The information was communicated by the defendant to a third person.
- The information identifies the plaintiff; and
- The information had defamatory imputations about the plaintiff.
The serious harm element is introduced
The uniform defamation law underwent reform with the amendments to the legislation introduced from July 2021. Some key changes have been made to how defamation matters are determined by the courts, which includes an additional fourth element of "serious harm" that must be proved by the plaintiff in these proceedings.
The uniform defamation legislation now has the inclusion of Section 10A which provides.
It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about person has caused, or is likely to cause, serious harm to the reputation of the person.
When defamation proceedings are commenced in the court, there may also be an additional step in the proceedings that will require a Judge to determine whether the serious harm element has been established prior to the matter proceeding to trial. Under section 10A (5) of the Act, a party may apply for the serious harm element to be determined as soon as practicable.
New requirement to issue a Concerns Notice
A Concerns Notice is the first step in dealing with a communication which you consider defamed you. It is a written notice (usually in the form of a letter) given to the publisher of the defamatory material notifying them of the following:
- The publication complained of;
- The imputations that arise from the publication; and
- Provides the publisher with an opportunity to respond to the notice and make amends for the publication.
The defamation reforms now require a plaintiff to give a 'Concerns Notice', which advises the defendant of the harm that the person considers to be serious harm to the person's reputation caused, or likely to be caused, by the publication of the matter.
The legislation specifies what is required to be in the Concerns Notice for it to be valid, and the plaintiff must provide the publisher (the defendant) 28 days to respond to the notice before they are able to file court proceedings. More importantly, the legislation specifically states proceedings cannot be commenced without issuing the Concerns Notice first.
Other reforms to defamation laws
Other provisions that have been amended within the legislation include:
- defence of triviality being removed; and
- the public interest defence introduced.
The public interest defence makes it a defence to the publication of defamatory material if the defendant can prove that in the circumstances:
- the material concerned an issue of public interest; and
- the publisher reasonably believed that the publication of the material was in the public interest
Defamation case review: Martin v Najem [2022] NSWDC 479
The case of Martin v Najem (17 October 2022) was the first time an Australian court considered the serious harm element since the reforms commenced.
The plaintiff, Isaac Martin, is a social media food blogger with an audience of 210,000 followers on Instagram, around 40,000 on Tik Tok and 10,000 on Facebook. Mr Martin alleges that he built up a large social media following and reputation as an influencer known as "Sir Eats- A-lot".
The defendant, Fouad Najem, is also a food blogger and "influencer" who has also built up a large following on social media.
On 22 April 2022, the plaintiff received messages from people he knew, informing him that Najem had published a video about him on Instagram. In the court judgment, it was the plaintiff's evidence that he instantly recognised the defendant was referring to him in the video and heard the defendant call the plaintiff a "paedophile" and a "racist".
The following day, the plaintiff became aware of a second video Najem posted to his Instagram account. In the second video, Najem repeated the imputations that the plaintiff was a paedophile by calling him a "pedo-dog".
The court's considerations
The Court held that serious harm requires actual fact-rich proof of harm which is actually, or likely, to be serious - rather than inferences of serious harm. The court noted the following factors in the matter that gave weight when considering the serious harm element:
- The defendant threatened the plaintiff with serious physical and professional harm;
- The extreme nature of the allegations. Her honour Judge Gibson DCJ noted;
'There are few more hated criminals in Australia than paedophiles. They are not even safe in gaol. To call a person a paedophile is at or near the top of the list of serious allegations. Allegations of being a racist are repugnant, but not in the same class'.
- The manner of the publication. The defendant threatened harm to the plaintiff and called on his supporters to help him;
- The extent of the publication is very wide:
'The defendant published the matters complained of on both his Instagram accounts. Social media accounts are not just seen by their followers; they may appear on feeds based on AI analysis of likely interested parties or come up on a search'.
The court also heard evidence from the plaintiff that he continues to receive threats from followers. In the six months after the videos had been posted, Mr Martin still received threats that had an impact on his health and wellbeing. The plaintiff stated he is anxious about security and has refused jobs or visits to certain areas because of fears of attack, not only on him but also on his wife and children.
The court's decision
On the day of the trial, the defendant (Mr Najem) did not attend and did not have legal representation. The trial proceeded without the defendant and without any evidence from the defendant in relation to the alleged imputations.
The court ordered judgment for the plaintiff for the sum of $300,000 as well as an order to pay the plaintiff's legal costs.
Her honour noted in the decision:
'The fact that this all came out of the blue - the plaintiff has never even met the defendant - makes it all the more frightening.'
Get help with defamation
When considering suing for defamation, it is important to carefully analyse the serious harm elements and comply with the pre-proceeding steps before filing proceedings in the court.
You should also be aware of the limitation period to bring defamation proceedings. After the defamation reforms, this is now 12 months from the date the alleged defamatory matter was first published.
When responding to allegations of defamation, it is equally important to understand the case alleged against you to be able to properly defend the matter at trial.
Download As PDFThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
