Defamation 

Defamation protects reputation, and in Australia it does so through legislation that is close to uniform across the states and territories. A student's first task is therefore statutory rather than common law: identify the applicable Defamation Act, and check whether the jurisdiction has enacted the 2021 amendments, which introduced a serious harm threshold and a new public interest defence and were not adopted everywhere at the same time.

The three elements

The plaintiff must prove three things, and the burden on each is comparatively light.

Publication. The matter must be communicated to at least one person other than the plaintiff. Publication is broad: a republisher is generally liable for their own publication, and the administrator of a social media page may publish comments posted by others, as the High Court held in Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346.¹

Publication has limits. In Google LLC v Defteros [2022] HCA 27², decided five Justices to two, a search engine operator that provided a search result containing a hyperlink to a newspaper article was held not to have published the article. Kiefel CJ and Gleeson J said that the operator did not approve the writing of the matter, did not contribute to its publication on the newspaper's webpage, did not provide a forum where it could be communicated and did not encourage comment likely to contain defamatory matter; facilitating access to another's webpage is not participating in communicating its contents ([49], [53]). Gageler J agreed with their conclusion and reasons ([59]), and Edelman and Steward JJ reached the same result in joint reasons; Keane J and Gordon J dissented. The case concerned a search result with a hyperlink, and the joint reasons recognised that search results may themselves contain defamatory matter ([23]); it affirmed the Voller principle that any voluntary act of participation in the communication of defamatory matter makes a person a publisher ([19]-[21]).

In New South Wales the position of online intermediaries is now also statutory. The Defamation Act 2005 (NSW) exempts search engine providers, and caching, conduit and storage services, from liability for defamation on the conditions in ss 10C and 10D, and gives digital intermediaries a defence in s 31A, for causes of action accruing after the digital intermediary amendments commenced on 1 July 2024.⁴ Whether another jurisdiction has equivalent provisions depends on its own Act.

Identification. The matter must be reasonably understood to refer to the plaintiff. Naming is not required — the question is whether a reasonable reader with knowledge of the surrounding circumstances would identify them.

Defamatory meaning. The matter must tend to lower the plaintiff in the estimation of ordinary reasonable members of the community, expose them to hatred, contempt or ridicule, or cause them to be shunned or avoided. The test is objective and applied to the ordinary reasonable reader, who is taken to read the publication as a whole rather than dwelling on isolated phrases.

Serious harm, and the concerns notice

The 2021 amendments changed the shape of the action. A plaintiff must now establish that the publication has caused, or is likely to cause, serious harm to reputation; for a corporation entitled to sue, serious financial loss. This is an element, not a defence, and it is ordinarily determined as a preliminary question — the reform was directed squarely at trivial claims.

A plaintiff must also give the publisher a concerns notice and allow the offer-to-make-amends period to run before commencing proceedings. Failure to do so is not a technicality; proceedings commenced without it are liable to be stayed.

The principal defences

Justification is substantive truth: the defendant proves the imputations carried were substantially true. Contextual truth allows a defendant to rely on other, substantially true imputations of such weight that the untrue imputations cause no further harm to reputation.

Honest opinion protects an expression of opinion, rather than fact, on a matter of public interest, based on proper material that is substantially true or itself privileged.

Absolute privilege protects parliamentary and judicial proceedings entirely. Qualified privilege at common law and under statute protects publication to a recipient with a corresponding interest in receiving it, and is defeated by malice.

The public interest defence introduced in 2021 protects publication of matter concerning an issue of public interest where the defendant reasonably believed the publication was in the public interest. It is directed at responsible journalism and is assessed against a non-exhaustive list of factors.

Innocent dissemination protects subordinate distributors, and triviality — where it survives — protects publication in circumstances unlikely to cause harm.

Remedies

Damages compensate for injury to reputation, hurt feelings and vindication. Damages for non-economic loss are capped, with the cap set annually, though aggravated damages may be awarded where the defendant's conduct increased the harm. The 2021 reforms clarified that the cap operates as a scale rather than being reserved for the most serious case.

Injunctions to restrain publication are granted sparingly before trial: courts are reluctant to restrain speech in advance where a defence may succeed. Corrections and apologies, encouraged through the offer-to-make-amends scheme, are frequently the practical outcome.

Who may sue, and who may be sued

Not every plaintiff may bring an action. A corporation may sue only if it is an excluded corporation — broadly, a not-for-profit, or a small business employing fewer than ten people and not related to another corporation. This restriction is deliberate: it prevents substantial commercial entities from using defamation to suppress criticism, leaving them to injurious falsehood or the misleading conduct provisions where those apply.

An action does not survive the death of either party, and cannot be brought on behalf of a deceased person. Reputation, in Australian law, is personal to the living.

On the defendant's side, liability runs to author, editor and publisher alike, and the chain can be long. The subordinate distributor — a newsagent, a platform in some circumstances — is protected only by innocent dissemination, and only until they know or ought to know the matter is defamatory. That qualification is why a notification to a platform matters so much in practice: it can convert a protected distributor into an exposed publisher.

Identification and multiple publications

The plaintiff must be identified by the matter, but need not be named. It is enough that reasonable readers with knowledge of extrinsic facts would understand the matter to refer to the plaintiff, and the publisher's intention is irrelevant — accidental identification is still identification.

Where a group is defamed, an individual member can sue only if the group is small enough, or the matter specific enough, that the imputation reaches them personally.

The single publication rule now applies in most jurisdictions: for an electronic publication, the limitation period runs from the date of first upload rather than from each subsequent download, subject to the matter not being materially altered. That reversed the position under which every download was a fresh publication with its own limitation period.

Applying this in a problem question

1. Identify the jurisdiction and confirm whether the 2021 amendments apply there, because the serious harm threshold and public interest defence depend on it.
2. Take each imputation the plaintiff pleads separately, and test defamatory meaning against the ordinary reasonable reader reading the whole publication.
3. Address publication and identification briefly unless the facts make either contentious, then deal with serious harm as a live element.
4. Check whether a concerns notice was given, and note the consequence if it was not.
5. Work through the defences in the order the defendant would plead them, stating for each precisely what the defendant must prove.
6. Turn to remedies last, and address the cap, aggravated damages and the reluctance to grant interlocutory injunctions.

Self-check

• Have I confirmed which Defamation Act applies and whether the 2021 reforms are in force there?
• Have I treated serious harm as an element the plaintiff must prove, not as a defence?
• Have I tested each imputation separately rather than the publication as a whole?
• Have I identified who bears the burden on each defence?