Defamation between family, friends and neighbours

Many defamation disputes do not involve the media at all. They arise from a message in a family group chat, an email to the owners in an apartment building, a post in a community Facebook group, or something said about a former partner during a separation. The same law applies as to a newspaper article, but the facts raise particular issues: tiny audiences, close relationships, shared interests that attract qualified privilege, overlapping criminal and family law rules, and costs that quickly dwarf the amounts at stake.

Section numbers are those of the Defamation Act 2005 (NSW), which Queensland, Victoria, South Australia and Tasmania share for the provisions discussed.

Private messages are still publications

Defamation requires publication to at least one person other than the person defamed. There is no exception for family, and no minimum audience. In Rader v Haines, a single email sent by a couple to their son in law’s parents, headed “Children’s schooling” but recounting allegations of stalking and violence, was a publication and was litigated to the New South Wales Court of Appeal.¹ A message in a group chat, a text to a mutual friend or a comment under a neighbour’s post is equally a publication. Anyone who participates in or intentionally assists the communication, including by forwarding or sharing it, is also a publisher.²

A text sent only to the person it is about is different: it is not published to a third party and cannot be defamatory, however abusive, although it may support the protective orders discussed below.

Serious harm in a close circle

Since the 2021 reforms, everywhere except Western Australia, the plaintiff must prove that the publication has caused, or is likely to cause, serious harm to their reputation.³ This element matters greatly in disputes between relatives, friends and neighbours, because they so often involve publications to a handful of people.

Rader v Haines shows how the test works in a family setting. The email went to the plaintiff’s own parents in England, who knew him well, already knew of the acrimony in the marriage, heard his response within days and put it to the senders. The Court of Appeal upheld the finding that serious harm was not established. The test is not satisfied by the gravity of the imputation alone. Relevant matters include the extent of publication, the nature of the recipients, their relationship with the plaintiff and whether they believed what was said. The harm must be more than merely substantial, though it need not be grave.¹ There was no evidence that the allegations spread beyond the parents through the “grapevine”, and any effect on the parents’ view of their son had dissipated within weeks.¹ The email was received in England, so the English serious harm provision applied, but Australian courts have since treated the New South Wales Court of Appeal’s reasoning in that case as applicable to s 10A.⁴

At the other end of the scale, public posts about a grave matter will usually satisfy the test. In Martin v Najem, videos on public Instagram accounts calling the plaintiff a paedophile and a racist, with evidence of circulation and abuse from strangers, were found to have caused serious harm; the defendant did not appear at the hearing and judgment was entered for $300,000 including aggravated damages.⁵ Serious harm may be inferred from the meaning of the words, the plaintiff’s situation, the circumstances of publication and the inherent probabilities, without evidence from every recipient. It must still be established as a fact, and the gravity of the imputation alone is not enough.⁴

For a plaintiff, a claim about a message to a few relatives who did not believe it is unlikely to succeed, however hurtful it was. For a defendant, the serious harm element is often the first and strongest answer to a claim arising from a private family dispute, and it can be determined before trial.³

Qualified privilege between family and friends

Family members and close friends often have a legitimate reason to speak to one another about a person they are both connected to. Where the speaker has a legal, social or moral duty or interest in communicating and the recipient a corresponding interest in receiving the information, the occasion is one of qualified privilege at common law, preserved by s 24 of the Act.⁶ In Rader v Haines, the trial judge identified “a moral, familial and social duty to communicate” between the two sets of grandparents about their grandchildren’s welfare and schooling and the conflict between their children, and the Court of Appeal held that the allegations about the son in law were sufficiently connected to that occasion to be protected.¹

The privilege attaches to the occasion, not the words. It extends to honest but mistaken statements and to passing on a rumour where the occasion calls for it, as the High Court held in Cush v Dillon.⁷ It does not extend to material unconnected to the shared interest, and it is defeated if the plaintiff proves malice, meaning an improper purpose such as a desire to injure rather than the purpose the occasion exists to serve. In Rader v Haines the malice argument failed because the evidence did not show that the senders wished to influence family law proceedings or to turn the plaintiff’s parents against him.¹

A warning to a relative about a prospective partner, or a message within a family about a member’s conduct towards a vulnerable relative, can attract the defence. Broadcasting the same material to the wider community or on social media usually will not, because most of those recipients have no reciprocal interest.

Neighbours, strata schemes and community groups

Neighbourhood disputes generate defamation claims in two main settings: communications within a building or estate, and local community pages.

Communications among residents about the management of their building can be privileged. In Murray v Raynor, a tenant replied to an email from the chair of the strata committee about mailbox security, copying 16 unit owners and her agent, and accused the chair of harassing and menacing her. The trial judge awarded the chair $120,000. The Court of Appeal set the judgment aside and dismissed the claim. It held that communication to residents about building management was a privileged occasion, that the email was relevant to it, and that malice had not been proved. It added that even if the defence had failed, no more than $25,000 should have been awarded.⁸

Community Facebook groups are different, because the audience is large and the shared interest diffuse. In O’Reilly v Edgar, posts in motorsport Facebook groups with several hundred and about 1,400 members, alleging corruption, sexual harassment and the enabling of paedophilia, led to a substantial award in the Supreme Court of Queensland.⁹ In Hockings v Lynch, a dispute over the site of a new hospital in the Tweed Valley spilled onto a community page with nearly 4,000 followers, and the District Court of Queensland awarded damages against each defendant and a further sum jointly.¹⁰ Following Voller, a person who runs a page on which others post comments can be a publisher of those comments.²

Complaints to police and other authorities

A neighbour or relative who reports suspected criminal conduct to police is in a stronger position than someone who posts the same allegation online. The Act now gives absolute privilege to matter published to a police official acting in an official capacity, so a report to police cannot found a defamation claim at all, regardless of motive. The provision is s 27(2)(b1) in New South Wales, in force from 1 July 2024, and s 27(2)(ba) in Queensland, in force from 26 December 2025.^{11 12} It comes from a later round of model amendments than the 2021 reforms. Victoria, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have enacted the same amendment, on their own commencement dates and in some cases with different section numbers; Western Australia has not.²¹

Where absolute privilege does not apply, as in Western Australia or for reports made before the provision commenced, complaints to police attract qualified privilege at common law. In Karageozis v Sherman, decided on a 2020 complaint, the Queensland Court of Appeal held that a report to police about a former partner’s persistent contact and threats was made on a privileged occasion even though the conduct was not itself an offence, because police have a duty to keep the peace and the law should allow people to report concerns about behaviour that might become serious; malice was not proved and judgment was entered for the defendant.¹³ Complaints to child protection authorities, schools and professional regulators are generally treated the same way: qualified privilege, lost only on proof of malice, unless a statute confers absolute privilege.

Separation and family law

Defamation claims between former partners and their families often run alongside family law proceedings, and two special rules apply.

First, documents filed in, and evidence given to, the Federal Circuit and Family Court of Australia are absolutely privileged under s 27, because the court is an “Australian court” within the Act.¹¹ An affidavit alleging violence or abuse cannot be sued on in defamation, however false the person it describes says it is; the remedy lies within the family law proceedings.

Second, repeating those allegations outside the proceedings may be a crime as well as a defamation. Since 2024 the Family Law Act 1975 (Cth) makes it an indictable offence, punishable by imprisonment for one year, to communicate to the public an account of proceedings under the Act that identifies a party, a witness or a person related to or associated with a party; an account identifies a person if it includes material “sufficient to identify the person to a member of the public”, such as a name, picture or workplace.¹⁴ A private communication between a party and members of their family or friends is not a communication to the public.¹⁵ Nor is a communication to a person or body whose significant and legitimate interest in the subject matter is substantially greater than, or different from, that of the general public.¹⁵ A public social media post describing a parenting case will usually fall on the wrong side of that line.

Alternatives to a defamation claim

Personal disputes are frequently better addressed by other remedies. Where the conduct involves threats, harassment or fear, protective orders are available in every state and territory. In Queensland, a person who fears someone who has threatened to assault them or damage their property may complain to a justice of the peace under the Peace and Good Behaviour Act 1982 (Qld), and the Magistrates Court may order the respondent to keep the peace and be of good behaviour; breach is an offence carrying up to one year’s imprisonment.¹⁶ In New South Wales, a court may make an apprehended personal violence order where a person has reasonable grounds to fear and in fact fears intimidation or stalking, and “intimidation” expressly includes conduct, including cyberbullying, amounting to harassment; the Act’s note gives bullying by publication of offensive material over social media or email as an example of cyberbullying.¹⁷ Victoria’s equivalent is the personal safety intervention order under the Personal Safety Intervention Orders Act 2010 (Vic).¹⁸ Where the parties are or were in a domestic relationship, domestic violence legislation applies instead. These orders can stop the behaviour quickly and cheaply.

Mediation is often effective in strata and neighbourhood disputes, and the Queensland Act itself allows a justice to refer a peace and good behaviour complaint to mediation with the complainant’s consent.¹⁶

Where a defamation claim is pursued, a concerns notice must be given before proceedings are commenced in every jurisdiction other than Western Australia, and the recipient has 28 days to make an offer to make amends.¹⁹ A prompt apology or correction offered in response can both resolve the dispute and protect the publisher on costs: if a plaintiff unreasonably refuses a reasonable settlement offer, including an offer to make amends, and then loses, the plaintiff must ordinarily pay indemnity costs.²⁰ Awards in small audience cases are modest. In Rader v Haines the trial judge assessed damages at $15,000 in case the claim had succeeded, and the Court of Appeal in Murray v Raynor considered $25,000 the most that could have been justified.^{1 8} The costs of a contested trial will usually be many times those figures.

Practical points

For a person defamed by a relative, friend or neighbour, the first questions are how many people received the publication, whether they believed it, whether it spread, and whether there is evidence of harm to reputation rather than hurt feelings. If the publication was to police or in family law documents, defamation is not available. If it was in a large public group, the position is much stronger, and evidence of the posts, comments and shares should be preserved.

For a person accused of defaming a relative, friend or neighbour, the questions are whether the recipients had a genuine shared interest in the information, whether the communication stayed within that group, whether there is evidence of an improper motive, and whether serious harm can realistically be proved. A measured response to a concerns notice, with an offer to make amends where appropriate, is often decisive.

Differences between jurisdictions

Western Australia has not enacted the 2021 reforms: there is no serious harm element, a concerns notice is not a precondition to suing, and the triviality defence remains. The police absolute privilege provision is s 27(2)(b1) in New South Wales and s 27(2)(ba) in Queensland, and the same model amendment has been enacted everywhere except Western Australia.^{11 12 21} The Australian Capital Territory and Northern Territory provisions are numbered differently. Protective order legislation is entirely state and territory based and the thresholds, terminology and procedures differ.

Getting advice

In family and neighbourhood disputes the legal position is often the opposite of what the parties assume: the most hurtful private message may not be actionable, while a casual post to a community page may be. Early advice on serious harm, privilege and the alternatives usually saves both sides time and money.