How do I know if I have been seriously harmed for the purposes of defamation?

The uniform defamation laws in each of Australia’s states and territories (Uniform Defamation Laws), except Western Australia and the Northern Territory, require a person to prove that the published information has caused, or is likely to cause, serious harm to the person’s reputation.

Serious harm is a new requirement established by the 2021 amendments to the Uniform Defamation Laws. Accordingly, compared to other defamation requirements (see here), the law is less clear as to what may or may not constitute serious harm.

The Uniform Defamation Laws themselves provide little guidance on serious harm except to clarify that, for an excluded corporation (see here) that makes a defamation claim, serious harm must consist of serious financial loss.

For a more recent update on the requirement of serious harm, take a look at our article on the Federal Court of Australia case of Selkirk v Wyatt [2024] FCAFC 48 here.

Case law on serious harm

Australian courts have commented that, to establish serious harm, a person should rely on facts evidencing actual harm that has been caused, or is likely to be caused, rather than speculating on what harm could be caused.

As an example, in the case of Martin v Najem [2022] NSWDC 479, the Court held that a publication caused serious harm in the following circumstances:

  • the plaintiff was said to have committed serious criminal offences punishable by imprisonment;
  • the defendant threatened the plaintiff with serious physical and professional harm;
  • the publications asserted the plaintiff deserved to be harmed because of the alleged commission of those offences and called upon the defendant’s followers to harm the plaintiff;
  • the publications had a serious impact on the plaintiff’s health and wellbeing and concerns about his security, causing him stress and anxiety and resulting in him seeking medical assistance and taking medication;
  • the plaintiff avoided certain suburbs and locations in fear of being recognised from photographs in the publications; and
  • the plaintiff’s business was adversely affected by the publications due to work being refused.

Whether the requirement of serious harm has been satisfied will require an assessment of the specific circumstances and consequences of each publication. It is possible that circumstances less serious than those outlined in the example case above will still satisfy the requirement of serious harm.

If you think you have been defamed, may be defaming others, or have any questions regarding defamation law, please contact Mark Schneider, Eliza Buchanan or Georgina Buckley of our litigation and dispute resolution team.

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