“Serious harm” in defamation law

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 approached correctly, could lead to the claim being struck out. Introducing the new “serious harm element” is just one of the ways the legislature has set about weeding out expensive, frivolous and trivial claims.

Still, section 10A is silent on what “serious harm” actually means.

Further legislative guidance

Uniform Civil Procedure Rules

In addition to the Act, the Uniform Civil Procedure Rules 2005 (UCPR) govern pleadings and particulars for defamation claims. As to serious harm, the UCPR states that:

• a statement of claim alleging defamation must “allege that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the plaintiff” (UCPR r.14.30(2)(c))

Except for stating that the burden of establishing serious harm on the balance of probabilities falls to the plaintiff, neither the Act nor the UCPR define serious harm.

United Kingdom legislation

Section 10A of the Act is comparable to the United Kingdom’s Defamation Act 2013 (UK), which says that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” Many commentators have pointed to the UK’s legislative regime as the basis for Australia’s defamation reforms.

However, “serious harm” is not defined in UK’s defamation legislation, either.

What does the case law say?

In the absence of statutory guidance, we must look to the common law to understand what “serious harm” means. Even prior to the introduction of s10A, some consideration of the extent of harm caused by a publication was necessary as a matter directly relevant to the assessment of damages.

Historically, a defence of “triviality” existed at common law in Australia and the UK, whereby a defendant had to rebut the presumption that a defamatory publication caused harm (Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691). The common law defence of triviality later became codified as a statutory defence (formerly s33 of the Act). However, the legislative reforms to the Act in 2021 repealed s33 because the new requisite “serious harm” element shifted the burden of proof from the defendant (who had to rebut the presumption of harm) to the plaintiff (who must positively prove that the publication has caused, or is likely to cause serious harm).

On 24 February 2022, Justice Sackar of the Supreme Court of NSW gave judgment in Newman v Whittington [2022] NSWSC 249 (Whittington Decision). This case is the first time the “serious harm” element in s10A has been considered by an Australian Court since the legislative reforms to the Act took effect.

In addressing serious harm, the Whittington Decision considered UK cases, namely:

Applying the findings of the UK cases above, Justice Sackar in the Whittington Decision found as follows about serious harm in NSW defamation law:

• the question of serious harm must be determined by the judge at any time before, or during the trial

• a plaintiff has to prove, as a necessary element, serious harm by reference to the specific facts of the case and the actual impacts of the publication on the plaintiff’s reputation

• s10A of the Act in NSW abolished the common law presumption that defamatory publications cause harm

• a claim which fails to properly plead and particularise serious harm ought be struck out.

Summary

Whilst the Whittington Decision is the first Australian judgment to grapple with s10A and the new “serious harm” threshold, there is yet to be a judgment involving s10A and serious harm following an evidentiary assessment and hearing on the merits of a claim. Once this occurs, some light may be shed on the types of practical impacts which are likely to constitute serious harm.

Nonetheless, the Whittington Decision provides a framework for plaintiffs to characterise serious harm as a requisite element to defamation actions in Australian Courts.

Although this is still a developing area, the following is beyond doubt:

1. a defamation action will fail, even on the pleadings alone, if it fails to establish serious harm caused by the publication

2. serious harm is not presumed – a plaintiff must prove the actual, harmful impact of the publication on the plaintiff’s reputation

3. properly establishing serious harm requires expert legal knowledge and advice to get right the first time.

If you would like advice on defamation, Bartier Perry’s Commercial Disputes team is experienced and available to assist. Whether you are a publisher or aggrieved person, we can advise on and review publications, issue or respond to Concerns Notices and protect your interests in your reputation. Please contact Adam Cutri or David de Mestre for a confidential discussion.

Authors: Adam Cutri and David de Mestre