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Why so serious? Requirement of serious harm in defamation

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By Lee Filkin, Lawyer and Alicia Hill, Principal

Recent Australian developments in the law of defamation have imposed increased evidentiary burdens on plaintiffs. Does this mean it is harder for plaintiffs to make a claim for defamation? Or is it now also easier for publishers of defamatory material to get away with it? This article addresses the changes and considers the implications for those wanting to bring a defamation claim.

Background

On 1 July 2021 the Model Defamation Amendment Provisions 2020 (MDPs) commenced in Victoria, New South Wales, Queensland, South Australia and the Australian Capital Territory (but not yet in Western Australia or the Northern Territory).

Most relevantly, the MDPs require a party seeking to bring an action in defamation to establish that they have suffered “serious harm”.

The serious harm element was enacted in Victoria within section 10A of the Defamation Act 2005 (Vic) (Defamation Act), but equivalent provisions are also in force in the other jurisdictions mentioned above.

How serious is serious? Overview of serious harm

In order for a cause of action in defamation to be made out, a publication about a person must have caused, or be likely to cause, serious harm to the reputation of the person in question.

For companies, the serious harm element can only be proven if there has been, or is likely to be, “serious financial loss” caused to the corporation as a result of the defamatory publication.

This is a reversal of the mechanism previously in place under the now-repealed section 33 of the Defamation Act, which provided for a “triviality” defence.

That is, if the person alleged to have made a defamatory publication (Defendant) could prove in the circumstances that the person allegedly defamed (Plaintiff) was “unlikely to sustain any harm”, this previously would have operated as a defence for the Defendant.

The introduction of the serious harm element means that it is now on the Plaintiff to prove that serious harm has been suffered, rather than the Defendant being required to prove the contrary.

The Court can also decide whether serious harm has been proven at any time before the trial of a defamation claim. If the Court is satisfied that the Plaintiff has not proved that they suffered serious harm as a result of the defamatory publication, the Court may dismiss the proceeding.

The reasoning behind this is to allow the Court to weed out trivial claims where no “serious” harm has been suffered as soon as possible after these claims are made, rather than allowing the time and cost of going to trial being incurred unnecessarily.

Adopting the United Kingdom approach: Newman v Whittington

The Defamation Act does not include specific criteria for what constitutes serious harm or serious financial loss. The scope of these concepts will be determined by the courts as new defamation cases arise.

The recent New South Wales decision of Newman v Whittington [2022] NSWSC 249 (Newman) is the first Australian decision considering the “serious harm” element of defamation. The case concerned a number of allegedly defamatory publications made online via platforms such as Facebook and WordPress.

In making his decision in Newman, Justice Sackar (Sackar J) referred to the UK Supreme Court’s decision of Lachaux v Independent Print Ltd and another [2019] UKSC 27; [2020] AX 612 (Lachaux).

The Lachaux case concerned provisions in the United Kingdom that are very similar to the serious harm provisions in Australia. In that case it was confirmed that the equivalent serious harm provisions “abolished the common law rule that damage was to be presumed and not proved…Serious harm must be proved by evidence of the actual impact of the publication.”

Sackar J stated that he would adopt much of the Lachaux decision. He confirmed that the serious harm element introduced in Australia similarly removed the presumption that damage is caused by a defamatory publication.

These considerations were made on an abstract basis however, as Sackar J ultimately decided that the Plaintiff’s pleadings (meaning the claim made by the Plaintiff particularised in a court document) did not sufficiently articulate the serious harm element. The Plaintiff was granted the opportunity to update the pleadings so that serious harm is better articulated.

Sackar J’s decision provides useful guidance as to the likely direction in which defamation law will develop. Similar to trends evolving in the United Kingdom, greater evidentiary burden will be placed on Plaintiffs to defamation actions, with the burden previously placed on Defendants reversed and alleviated.

Practical considerations: proving publication via social media

Sackar J also discussed some of the practical difficulties in establishing “publication” in the context of social media. The concept of publication is easily made out in traditional mediums such as printed newspapers, but is complicated by use of the internet.

A social media user does not make a defamatory publication merely by posting on social media. The post in question must be “downloaded” by others in order for defamation to be made out.

That is, if it cannot be proven that anyone viewed or “downloaded” the post, the Plaintiff may experience difficulty in establishing that publication occurred.

Sackar J indicated that evidence of user interaction such as likes, comments and shares could be used to establish publication, insofar as these interactions identify the particular jurisdiction in which publication took place.

This was not definitively determined however, and Sackar J permitted the Plaintiff to amend her pleadings to include evidence of the jurisdiction in which the defamatory posts were published.

Given the privacy protections and anonymity inherent in many social media sites, establishing evidence of publication will likely prove difficult for Plaintiffs in many cases.

This issue may also be further considered by the courts, subject to any changes in the amount of user engagement information made publicly available by social media platforms.

Takeaways

Those considering making a claim in defamation should be aware of the above legislative and case law developments, as should those against whom a defamation claim is made.

If you are concerned about a defamation allegation made against you, or if you are considering making a defamation claim against someone else, we recommend that you obtain legal advice to assist you in considering the best approach to take.

If you have any queries about any of the matters raised by in this article, please contact Lee Filkin on +61 3 8540 0200 or lee.filkin@mst.com.au.