What is defamation? The elements of a claim in Australia

Defamation is the civil wrong of publishing material that damages another person’s reputation. Most people encounter it only once, often at short notice, and usually with a strong sense that the law must be entirely on their side or entirely against them. It is rarely either. This article sets out what a person suing for defamation must prove, what they do not need to prove, and where disputes are actually fought.

The law is now largely uniform across Australia. Each state and territory has a Defamation Act (or, in the Australian Capital Territory, a chapter of the Civil Law (Wrongs) Act 2002) based on the same model provisions. Section references in this article are to the Defamation Act 2005 (NSW); the Queensland, Victorian, South Australian and Tasmanian Acts use the same section numbers, while the ACT and Northern Territory provisions are numbered differently. Western Australia has not adopted the 2021 amendments, which matters for the serious harm element and the concerns notice procedure described below.

One tort, not two

Historically the common law distinguished between libel, which was defamation in permanent form such as writing, and slander, which was spoken, and slander generally required proof of actual financial loss. The uniform legislation abolished that distinction. Section 7 provides that the distinction at general law between slander and libel is abolished and that, accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.¹ A spoken accusation at a body corporate meeting is dealt with on the same footing as a newspaper article or a Facebook post.

The legislation does not replace the common law of defamation wholesale. Section 6 provides that the Act relates to the tort of defamation at general law and does not affect the operation of the general law except to the extent that the Act provides otherwise.² Much of the detail below on publication, identification and defamatory meaning therefore comes from decided cases rather than from the text of the statute.

The Act defines “matter” very broadly to include articles, programs, letters, pictures, gestures, oral utterances and anything else by means of which something may be communicated to a person.³ Emails, text messages, online reviews, podcasts and comments on someone else’s post are all capable of being defamatory matter.

What has to be proved

A plaintiff who sues for defamation in Australia must establish four things.

Publication

The matter must have been published, which in defamation means communicated to at least one person other than the plaintiff. A letter sent only to the person it insults is not published for this purpose, however hurtful it is. The High Court has described publication as a bilateral act in which the publisher makes the matter available and a third party has it available for his or her comprehension, and has said that harm to reputation is done when the publication is comprehended by the reader, listener or observer.⁴

Publication is construed widely. Any person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher; all that is required is a voluntary act of participation in its communication.⁵ That is why a media company can be liable for third party comments on its public Facebook page, and why a person who forwards an email or shares a post may be a publisher of its contents. Our separate article on publication deals with these questions in detail.

Identification

The matter must be “of and concerning” the plaintiff. The plaintiff does not have to be named. The question is whether ordinary reasonable people who read or heard the matter, including people with knowledge of relevant background facts, would understand it to refer to the plaintiff. Dixon J explained in 1934 that the cause of action consists in publication of defamatory matter of and concerning the plaintiff, and that it is the publisher’s act of publishing matter which in fact refers to the plaintiff, not the publisher’s intention, that matters.⁶ A publisher who meant to refer to someone else, or to nobody in particular, can still be liable.

Defamatory meaning

The matter must convey a meaning (an “imputation”) that is defamatory of the plaintiff. The general test is whether the published matter is likely to lead an ordinary reasonable person to think the less of the plaintiff.⁷ The High Court in Radio 2UE Sydney Pty Ltd v Chesterton confirmed that this general test applies to every kind of imputation, including those affecting a person’s business or professional standing, and that the hypothetical referee is an ordinary reasonable person who applies general community standards rather than the attitudes of a particular section of society.⁸

The meaning is judged objectively. What the publisher intended to convey, and what the plaintiff believes was conveyed, are both beside the point. The question is what the ordinary reasonable reader would take the matter to mean, reading it as a whole and in context. That reader has the capacity to read between the lines in the light of general knowledge and experience of worldly affairs, but meanings that can only emerge from a strained, forced or utterly unreasonable interpretation are rejected.⁹ The High Court in Trkulja v Google LLC described the exercise as one of envisaging a midpoint of temperaments and abilities and asking what is the most damaging meaning that ordinary reasonable people at that midpoint could put on the words, bearing in mind that such a person views the publication casually, is prone to a degree of loose thinking and draws derogatory implications more freely than a lawyer would.¹⁰ Our separate article on defamatory meaning explains how courts work out what a publication means.

Serious harm

Since 1 July 2021 (later in Tasmania and the Northern Territory), a plaintiff must also establish that the publication has caused, or is likely to cause, serious harm to the plaintiff’s reputation.¹¹ For a corporation that is permitted to sue, harm is not serious unless it has caused, or is likely to cause, serious financial loss.¹¹ The Act makes serious harm an element of the cause of action; the question is decided by the judicial officer, not a jury, and can be determined before trial.¹¹

This is the most significant change to defamation law in a generation. At common law, damage to reputation was presumed from the fact of publication of defamatory matter.¹² The serious harm element replaces that presumption with a factual question on which the plaintiff carries the burden: serious harm must be proved as a fact, by direct evidence, inference or both, and is never presumed.¹³ Our separate article on serious harm deals with how that is done.

Western Australia has not enacted this element. In WA, the common law presumption of damage still applies and the publisher must instead rely on the triviality defence if the publication was unlikely to cause harm.¹⁴

What does not have to be proved

Falsity

A plaintiff does not have to prove that the publication was false. The law presumes that a defamatory imputation is untrue, and it is for the publisher to prove otherwise. Section 25 provides a defence if the defendant proves that the defamatory imputations carried by the matter are substantially true.¹⁵ A publisher who cannot prove the truth of what was said is in the same position as one who published something false. This is often the single most important practical point for both sides: a publisher who “knows” an allegation is true but has no admissible evidence of it has a problem, and a plaintiff does not have to prove a negative.

Intention or fault

Liability for defamation does not depend on intention or fault in publishing, although some defences require good faith or honesty. A defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care; the intention of the author is not relevant because the actionable wrong is the publication.⁵ A person who honestly believed what they wrote, or did not realise the matter referred to the plaintiff, or did not appreciate how readers would take it, is still a publisher of defamatory matter.

Intention is not entirely irrelevant. It can matter to some defences (malice defeats qualified privilege, and honest opinion fails if the opinion was not honestly held), and it can matter to damages. A publisher’s state of mind does not of itself increase damages: s 36 directs the court to disregard malice or other state of mind except to the extent that it affects the harm sustained by the plaintiff. Conduct that aggravates that harm can therefore increase an award.¹⁶

Actual financial loss

Because the libel and slander distinction has been abolished, a plaintiff does not need to prove special damage, meaning actual monetary loss, in order to have a cause of action.¹ Outside Western Australia the plaintiff does, however, need to prove serious harm to reputation. For individuals that harm need not be financial. For excluded corporations it must be.¹¹

One publication, one cause of action

A single publication may convey several defamatory imputations, but under s 8 a person has a single cause of action in relation to the publication of defamatory matter even if more than one defamatory imputation is carried.¹⁷ This matters for pleading and for serious harm, which is assessed by reference to the publication of the matter as a whole rather than imputation by imputation.¹⁸

Who can sue and who can be sued

Any living individual with a reputation in Australia can sue. Companies generally cannot. Section 9 provides that a corporation has no cause of action for defamation unless it is an excluded corporation, meaning either a not for profit corporation or one that has fewer than 10 employees and is not an associated entity of another corporation, and in either case is not a public body.¹⁹ An individual associated with a corporation, such as a director or employee, can still sue personally if the matter defames that individual.¹⁹

There is no cause of action for defaming a deceased person, and a claim cannot be brought or continued against a person who has died.²⁰ Our separate article on who can sue covers these rules, together with government bodies, bankrupts and people under a legal disability.

Anyone who participated in the publication can be sued, from the original author to the person who republished the material. The legislation now provides exemptions and defences for certain digital intermediaries such as search engines and hosting services in the jurisdictions that have enacted the Stage 2 reforms.²¹

The time limit

The limitation period is short. An action for defamation is not maintainable if brought more than one year after the date of publication, and for electronic publications the date of publication is the day the matter was first uploaded or sent.²² A court can extend the period to a maximum of three years from publication if satisfied that it is just and reasonable to allow the action to proceed, and the period is automatically extended for a short time if a concerns notice is given within the final 56 days.²² Under the single publication rule, later republication of substantially the same matter by the same publisher does not restart the clock unless the manner of publication is materially different.²² Queensland’s equivalent provisions are ss 10AA and 10AB of the Limitation of Actions Act 1974 (Qld).²³

What usually happens in practice

Very few defamation disputes reach a judgment. Outside Western Australia, an aggrieved person cannot commence proceedings unless they have first given the publisher a concerns notice that identifies the matter and the imputations complained of and explains the harm, and then allowed the period within which the publisher may make an offer to make amends to expire.²⁴ The publisher then has 28 days in which to make an offer to make amends, which must include an offer to publish a reasonable correction and to pay reasonable expenses, and which, if reasonable and refused, is a complete defence to the proceedings.²⁵

That structure means that the concerns notice and the response to it are where many matters are decided. Litigation tends to follow where one side has misjudged the strength of its position on truth, on meaning or on harm.

Differences between jurisdictions

Getting advice

Whether a publication is actionable depends on what it conveys to its actual audience, who saw it, the harm that can be shown and the defences realistically available to the publisher. Those questions look different for a plaintiff and for a publisher, and they change as time passes. Advice obtained before a concerns notice is sent or answered is usually more useful, and less expensive, than advice obtained after positions have hardened.