Defamation Act 2005: Serious Harm Threshold and Public Interest Defence

Uniform Defamation Acts and Stage 1 reforms

The Defamation Act 2005 was enacted in substantially identical form in each Australian state and territory. This created uniform defamation law across the country, with the Model Defamation Provisions maintained by the Standing Council of Attorneys-General. [Spam Act 2003: consent, identification, unsubscribe]

Stage 1 reforms were approved by the Council of Attorneys-General in July 2020 and commenced on 1 July 2021 in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. Western Australia and the Northern Territory subsequently adopted these reforms in 2023 and 2024 respectively.

Stage 2 reforms, which address internet intermediaries, remain under consideration across all jurisdictions.

Serious harm element (s 10A)

Section 10A of the Defamation Act 2005 introduces a new element that must be established for a defamation claim to succeed. The publication must have caused, or be likely to cause, serious harm to the plaintiff's reputation. This requirement is intended to address concerns about trivial claims and was modelled on s 1 of the UK Defamation Act 2013. Australian Human Rights Commission Act 1986: process

For corporate plaintiffs, specifically excluded corporations under s 9, the threshold for serious harm is defined as 'serious financial loss'. Determining whether serious harm has occurred is a threshold issue, meaning it should be addressed as soon as practicable, often before a full trial.

The determination of what constitutes 'serious' harm is left to the courts. Each case will be assessed individually, considering the nature of the publication and its impact on the plaintiff's reputation.

Concerns notice and single publication rule

A plaintiff intending to bring defamation proceedings must first serve a Concerns Notice on the prospective defendant. This notice must clearly identify the imputations (the meanings conveyed by the statement) and the harm the plaintiff claims to have suffered.

The defendant then has a period of 28 days to respond to the Concerns Notice, during which they may offer to make amends. Failure by the plaintiff to adhere to the Concerns Notice procedure is a significant consideration, and proceedings may be dismissed as a result. eSafety basic online safety expectations can provide guidance on responsible online communication.

The single publication rule, introduced by Section 14A, dictates that the limitation period for defamation claims is generally one year. This period runs from the date of the initial publication of the defamatory material. While the period can be extended by the court up to three years in certain circumstances where it was not reasonable to commence proceedings within one year, each download or republication of the material does not restart the clock.

Public interest defence and damages cap

The Defamation Act 2005 includes a public interest defence, introduced by Section 29A. This defence allows a defendant to argue that the publication of defamatory material was in the public interest, provided the matter concerned an issue of public interest and the defendant reasonably believed publication was in the public interest. This defence is informed by the UK Defamation Act 2013 and the High Court’s Lange qualified privilege. Biometric information privacy act: FRT guide

The Act also addresses the statutory cap on damages for non-economic loss. This cap is indexed annually and currently sits around AUD 478,550. While aggravated damages can be awarded, the cap functions as a ‘scale’ rather than a removable upper limit, a clarification that reverses previous case law.

Further reforms introduced alongside the public interest defence include amendments to existing defences such as qualified privilege, triviality, and innocent dissemination.