Defamation Law FAQ

Defamation is the publication of matter about a person that identifies them and conveys a defamatory imputation (one that tends to lower them in the estimation of ordinary reasonable people). Since 1 July 2021, a plaintiff must also establish that the publication caused or is likely to cause serious harm.

Serious harm is an element the plaintiff must prove — that the publication caused or is likely to cause serious harm to their reputation (for corporations, serious financial loss). It was introduced by the Stage 1 Model Provisions and can be determined as a separate preliminary issue.

A concerns notice is a written notice from an aggrieved person to the publisher specifying the matter, the defamatory imputations, and the serious harm alleged. Since 1 July 2021 it is a mandatory precondition to commencing defamation proceedings — an action cannot be started without one.

The limitation period is 1 year from the date of publication, extendable by up to 3 years if the court is satisfied it was not reasonable in the circumstances for the plaintiff to have commenced in time. The single publication rule also applies to online publications since 2021.

The single publication rule means the 1-year limitation period for online defamation runs from first upload, not each download. A republication by the same publisher starts a new period only if the manner of subsequent publication is materially different from the first.

Statutory defences include justification (substantial truth), contextual truth, absolute and qualified privilege, publication of public documents, fair report of proceedings of public concern, honest opinion, innocent dissemination, and (since 2021) public interest and scientific or academic peer review.

The public interest defence (s 29A) protects publication of matter the defendant reasonably believed was in the public interest. It was introduced by the Stage 1 Model Provisions in 2021 and replaced much of the work previously done by the Lange qualified privilege defence for journalism.

Only excluded corporations can sue — broadly, not-for-profits and companies with fewer than 10 full-time equivalent employees that are not related to another corporation. Larger companies must use alternative causes of action such as injurious falsehood or misleading and deceptive conduct.

Non-economic loss is capped — the cap is indexed annually and sits in the low-hundreds-of-thousands. Aggravated damages can exceed the cap. Economic loss (including special damages) is separate and uncapped. Exemplary or punitive damages are abolished.

An offer to make amends is a statutory offer under Part 3 that a publisher can make after receiving a concerns notice. A reasonable offer that is not accepted becomes a complete defence. It typically includes a correction, apology, costs, and compensation.

Yes — social media posts are publications. The plaintiff must still identify a publisher (the poster and potentially the platform), establish the imputations, and prove serious harm. The High Court in Fairfax v Voller confirmed that Facebook page owners can be publishers of third-party comments.

Under the Stage 2 Model Provisions (commencing in most states in 2024), digital intermediaries have a conditional statutory defence if they act on a complaints notice within a defined time. The scheme is designed to reduce exposure for platforms hosting user-generated content.

Innocent dissemination protects subordinate distributors (booksellers, libraries, ISPs) who did not know and ought not reasonably to have known that the matter was defamatory, and whose lack of knowledge was not due to negligence. It is narrower post-2021 with the digital intermediary scheme.

Under the uniform choice of law rule, if the matter was published in multiple Australian jurisdictions, the substantive law is that of the jurisdiction with which the harm has the closest connection. The cause of action is a single cause of action for Australian publication.

In NSW, Victoria, Queensland and Western Australia, either party can elect a jury trial for defamation (subject to the court ordering otherwise). The jury decides liability issues; the judge decides damages. South Australia, ACT, NT and Tasmania do not have jury trial for defamation.

Collect the published matter (with URLs and timestamps), analytics or readership data going to serious harm, evidence of identification, any republications, evidence of reputational or financial loss, and the concerns notice and response. Quillio can timeline publications and map imputations to pleaded meanings.

Engage a lawyer before sending or responding to a concerns notice. The 28-day clock for making an offer to make amends and the 1-year limitation period both start running from events that occur before most clients seek advice. Early strategic decisions often determine the outcome.

Concerns notice correspondence and an early offer to make amends may cost $5,000–$20,000. A contested trial in the Supreme Court routinely costs $150,000–$500,000+ per side. Costs are a major driver of settlement given the capped non-economic damages.

The distinction has been abolished. Australian uniform defamation law treats all published matter (written, spoken, or in any other form) as a single cause of action. Proof of special damage is no longer required for spoken words.

Interlocutory injunctions to restrain threatened publication are granted only in exceptional cases, because of the strong free-speech considerations. The plaintiff must show the defence of justification would almost certainly fail at trial. Final injunctions after judgment are more readily granted.