Serious harm threshold in defamation in Queensland

• Published date: 19 March 2024
• Law Firm: Stonegate Legal
• Author: Mr Wayne Davis

Article Summary

The amendment of the Defamation Act 2005 (Qld) in 2021 introduced a pivotal change in defamation law with the incorporation of the serious harm threshold. This legislative adjustment mandates that plaintiffs in defamation cases must demonstrate that the defamatory publication has caused, or is likely to cause, serious harm to their reputation, a requirement that shifts the burden of proof from defendants to plaintiffs.

This change aims to balance the right to freedom of expression with the protection of individual reputations, ensuring that only claims of substantial reputational damage proceed to court.

The serious harm threshold is defined in Section 10A of the Defamation Act, detailing that harm to an individual's reputation or a corporation's financial standing must be significant to constitute serious harm. This requirement necessitates a judicial assessment, allowing for the early dismissal of cases that do not meet this criterion, thereby streamlining the legal process and focusing on cases of significant reputational damage.

Recent case law, including landmark decisions such as Lachaux v Independent Print Ltd and Rader v Haines, has further clarified the application of the serious harm threshold. These cases emphasise the necessity for tangible evidence of reputational damage and establish that emotional distress alone does not satisfy the serious harm requirement.

The courts have outlined factors such as the extent of publication, the audience's reaction, and the inherent probabilities of reputational damage in assessing whether the serious harm threshold has been met.

The introduction of the serious harm threshold represents a significant evolution in defamation law, aiming to prevent trivial claims from burdening the legal system while protecting individuals and corporations from significant reputational harm.

As defamation cases continue to rise in the digital age, understanding and navigating the serious harm threshold is crucial for potential plaintiffs. It underscores the importance of consulting with legal professionals before initiating defamation proceedings to ensure the viability of the claim under the new legislative framework.

In this article, our Queensland defamation lawyers explain the current law in relation to this serious harm threshold.

Serious Harm Threshold

In 2021, the Defamation Act 2005 (Qld) ('Defamation Act') was amended to introduce (among other things) the serious harm element, the requirement for a plaintiff to meet the serious harm threshold and removed the defence of triviality.

This amendment has shifted the burden of proof from a defendant to the plaintiff to sufficiently establish that they have suffered serious harm and their claim is otherwise not trivial.

Section 10A of the Defamation Act establishes that it is an element (serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or likely to cause, serious harm to the reputation of the person.

A person or an excluded corporation intending to commence defamation proceedings must satisfy the serious harm threshold and demonstrate that the defamatory publication has caused them serious harm. For an excluded corporation, they must demonstrate that the defamatory publication has caused, or is likely to cause, the corporation serious financial loss. If the serious harm threshold is not met, then the proceedings will be dismissed.

The introduction of the serious harm threshold is an attempt to reflect a balance between a person's individual right to freedom of expression and the equally important right to protect one's reputation.

Recent case law has provided further guidance on the serious harm element, what constitutes serious harm sufficient to satisfy the threshold and emphasises the consequences if the threshold is not met.

Serious Harm Element

Section 10A of the Defamation Act stipulates:

(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.

(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

(3) The judicial officer (and not the jury) in defamation proceedings is to determine whether the serious harm element is established.

(4) Without limiting subsection (3), the judicial officer may (whether on the application of a party or on the judicial officer's own motion)'

(a) determine whether the serious harm element is established at any time before the trial for the proceedings commences or during the trial; and

(b) make any orders the judicial officer considers appropriate concerning the determination of the issue (including dismissing the proceedings if satisfied the element is not established).

(5) If a party applies for the serious harm element to be determined before the trial for the proceedings commences, the judicial officer is to determine the issue as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial).

(6) The matters a judicial officer may take into account in deciding whether there are special circumstances for the purposes of subsection (5) include (but are not limited to) the following'

(a) the cost implications for the parties;

(b) the resources available to the court at the time; (c) the extent to which establishing the serious harm element is linked to other issues for determination during the trial for the proceedings.

(7) Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

(8) Nothing in this section limits the powers that a judicial officer may have apart from this section to dismiss defamation proceedings (whether before or after the trial commences).

The Amending Defamation Legislation

The Defamation Act was amended by the Defamation (Model Provisions) and Other Legislation Amendment Act 2021.

The defence of triviality was repealed, and a new clause 10A was included, essentially shifting the burden of proof from the defendant to the plaintiff.

The Explanatory Notes for the Bill say:

Clause 6 inserts a new section 10A (Serious harm element of cause of action for defamation) into the Act which provides that serious harm is an element of the cause of action for defamation, consistent with the approach taken in the Defamation Act 2013 (UK). Under this section, the plaintiff will be required to prove the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the plaintiff. Subsection (2) provides that, for an excluded corporation, harm is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

Section 10A outlines a method for assessing the presence of the serious harm requirement, including the following points:

• The decision on...