The introduction of a ‘serious harm’ threshold in Queensland’s defamation laws has reshaped how defamation claims are assessed, ensuring only legitimate and substantial cases proceed to litigation. This reform, implemented through the Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld), aligns Queensland with other Australian jurisdictions adopting this standard, creating a more consistent approach nationwide.

The threshold aims to strike a balance between protecting reputations and safeguarding freedom of expression. For individuals and corporations, understanding the implications of this test is essential when assessing potential defamation claims.

Understanding the Serious Harm Threshold

Section 10A of the Defamation Act 2005 (Qld) introduces the serious harm test, requiring plaintiffs to demonstrate that the defamatory material has caused, or is likely to cause, serious harm to their reputation. For corporations, this harm must take the form of serious financial loss. The provision creates a statutory filter, preventing trivial or unfounded claims from proceeding to court.

To meet the threshold, the harm must be significant enough to warrant judicial intervention. Courts can evaluate harm based on several factors, including:

• The nature and content of the publication.
• The extent of its dissemination, including the size and nature of the audience.
• The impact on the plaintiff’s personal or professional reputation.

This test allows courts to assess whether the harm reaches the requisite seriousness at an early stage of proceedings, often at a pre-trial hearing. If the threshold is not met, the claim is dismissed, saving time and costs for all parties involved.

Comparative Analysis

The serious harm threshold in Queensland mirrors provisions introduced in the UK under the Defamation Act 2013 (UK), where similar reforms have been in place for a decade. In the landmark UK case Lachaux v Independent Print Ltd [2019] UKSC 27, the Supreme Court held that serious harm requires tangible evidence of reputational damage rather than a mere presumption. Australian courts are likely to take guidance from such decisions, adapting the principles over time to the local legal landscape.

Implications for Plaintiffs

For plaintiffs, the introduction of the serious harm threshold adds an extra layer of complexity to defamation claims. Claimants can no longer rely solely on the defamatory nature of the material; they must also provide concrete evidence of the harm caused. This often involves obtaining witness statements, expert evidence or data showing reputational or financial impact.

The threshold also discourages plaintiffs from pursuing claims over minor grievances or publications with limited reach, such as private correspondence or obscure social media posts with minimal engagement. For example, in New South Wales, in the case of Zimmerman v Perkiss [2022] NSWDC 448, the court highlighted that private communications, such as direct Facebook messages, may fail to meet the serious harm threshold due to their limited audience.

Implications for Defendants

For defendants, the serious harm threshold serves as a protective mechanism against vexatious or baseless claims. Defendants can challenge the plaintiff’s ability to meet the threshold at an early stage, potentially securing dismissal of the claim without proceeding to trial. This shift encourages more robust defences, especially in cases involving public interest issues or minor errors.

The threshold also supports freedom of expression by allowing publishers, journalists and commentators to address matters of public importance without undue fear of litigation.

Challenges in Application

Although the serious harm threshold is a welcome reform, its practical application presents challenges. Establishing serious harm can be highly fact-dependent, requiring courts to balance competing interests. Factors such as the context of the publication, the credibility of the plaintiff’s reputation before the publication and the nature of the harm alleged will all influence the outcome.

Seeking Advice

Navigating the serious harm threshold can be complex, particularly when evidence of harm or financial loss is contested. Harris Defamation is experienced in assisting both plaintiffs and defendants with defamation claims. Our team offers fixed-fee consultations to help you understand whether your case meets the serious harm threshold and to outline the best course of action.

Whether you are seeking to protect your reputation or defending against a defamation claim, we provide practical, results-oriented advice tailored to your circumstances.

Conclusion

The serious harm threshold represents a pivotal shift in Queensland defamation law, ensuring that only genuine claims proceed to litigation. By filtering out trivial matters, the threshold promotes judicial efficiency and balances reputational protection with freedom of speech. If you are considering legal action or defending against a claim, seeking advice from Harris Defamation is crucial to navigating this evolving area of law effectively.