Serious harm in defamation law

• Published date: 15 July 2022
• Law Firm: Bartier Perry
• Author: Mr Adam Cutri and David De Mestre

In the digital age, defamation suits are becoming regular stories in news cycles across the country. Defamation laws aim to:

• protect individuals against harm to their reputation; and
• provide redress by way of compensatory damages for harm done to reputation

How do you measure the extent of harm to reputation and why is this important? We provide answers to this and related questions by discussing the "serious harm" element of defamation claims in recent legislative and case law developments.

Legislative reforms to the Defamation Act

Legislative reforms to the uniform Defamation Act 2005 (NSW) (Act) (which has counterparts in Victoria, Queensland, South Australia, Tasmania and the Australian Capital Territory) took effect on and from 1 July 2021 after the Defamation Amendment Bill 2020 was assented to on 11 August 2020. The reforms are aimed to prevent trivial or frivolous defamation claims, which can be prohibitively expensive for individuals to litigate, as well as demanding on judicial resources.

One of the several changes introduced was a new statutory element of "serious harm" for defamation actions.

The serious harm element is codified in section 10A of the Act, which states:

"(1) 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."

The judge must determine whether serious harm is established (not a jury) (s10A(3)). Further, this determination can be made at any time, either before or during the trial, even on the pleadings alone without the need for further evidence.

Clearly, serious harm is an important (albeit requisite) element of defamation actions and, if not...