Should you care about your bad reputation? – Selkirk v Wyatt provides an update on serious harm in defamation cases

In all Australian states and territories, except Western Australia and the Northern Territory, a defamation claim requires a person to prove that the published information has caused, or is likely to cause, serious harm to their reputation. For an initial look at the requirement of serious harm, see our summary article here.

On 15 April 2024, Justices Besanko, Anderson and O’Sullivan of the Federal Court of Australia released their judgment in Selkirk v Wyatt [2024] FCAFC 48 (Selkirk) which provides a useful overview of the serious harm requirement. In particular, the justices delved into the question of whether an individual’s bad reputation may play a role in determining if there has been serious harm.

The requirement of serious harm

The serious harm requirement was established by the 2021 amendments to the uniform defamation laws across Australia and bears similarities to section 1 of the Defamation Act 2013 (UK), which has been around longer than the Australian requirement and therefore has more applicable case law. Accordingly, the Court in Selkirk considered relevant UK cases to guide their understanding of how to interpret and apply the requirement in Australia.

Primary considerations

The Federal Court referred to the case of Lachaux v Independent Print Ltd [2019] UKSC 27, in which Lord Sumption based his finding of serious harm on the following matters:

1. the scale of the publications;
2. the fact the statements had come to the attention of at least one identifiable person that knew the plaintiff;
3. that the statements were likely to have come to the attention of others who either knew or would come to know the plaintiff; and
4. the gravity of the statements.

The Court in Selkirk continued by referencing the case of Rader v Haines [2022] NSWCA 198 (Rader), in which the New South Wales Court of Appeal was also required to consider section 1 of the UK defamation act:

1. ‘“serious harm” involves harm that is more than merely substantial, though it need not be grave’;
2. serious harm is concerned with ‘the impact of the imputation, in all the circumstances, on the plaintiff’s reputation – arising from a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. It is not satisfied by the gravity of the imputation alone. Nor is it satisfied by injury to feelings, however great’;
3. relevant considerations for serious harm include:
   1. the meaning of the words;
   2. the extent of the publications;
   3. the nature of the recipients and their relationship with the plaintiff; and
   4. whether the recipients believe the imputations; and
4. ‘a grave imputation may not result in serious harm’, such as when it is published to a small number of people that know the plaintiff and are not likely to believe the imputation.

Bad reputations

Prior to the introduction of serious harm, a person’s reputation was already relevant in defamation proceedings for the mitigation of damages. Selkirk quoted the case of Faruqi v Latham [2018] FCA 1328, in which Justice Wigney stated:

1. ‘evidence of a person’s bad reputation is, subject to certain conditions and exceptions, generally admissible in a defamation proceeding as going to the mitigation of damages’;
2. the evidence ‘must relate to the “sector” of the plaintiff’s life relevant to the defamation’;
3. the evidence ‘must demonstrate a settled view of the community and must be a permanent, not transitory view’;
4. evidence of previous acts of misconduct by the plaintiff must provide ‘directly relevant background context to the defamatory conduct’ to be admissible. The evidence must therefore be ‘directly relevant to either the subject matter of the alleged defamatory statement, or the plaintiff’s reputation in that part or sector of his or her life which is the subject of the defamatory publication, but does not include evidence of rumours’; and
5. the above rules are to ‘prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition’.

In addition to a plaintiff’s reputation being relevant to mitigate damages, the Court in Selkirk considered it was also ‘part of the serious harm test’.

The inclusion of the serious harm test in the uniform defamation laws effectively removed the presumption that the defamatory imputations caused damage along with, if it ever existed, the presumption that the plaintiff has a good reputation.

It is now expected that, for a plaintiff to show the extent of the harm suffered, they will adduce evidence as to their pre-existing reputation.

Where an individual has criminal convictions, or has previously admitted to criminal, dishonest or deceptive conduct, such convictions or conduct will be relevant if they have impacted the person’s reputation. In Selkirk, although the plaintiff had admitted to engaging in deceptive conduct, there was no evidence that such conduct was known to a sufficient number of people to conclude that the plaintiff had a general bad reputation because of that conduct.

Another recent case which may come to mind at the allegation of a defendant having a ‘general bad reputation’ may be the high-profile case of Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 (Lehrmann). Selkirk was unable to reference Lehrmann due to the latter being handed down only two days prior to Selkirk, but it is reasonable to consider that, had Selkirk been handed down later, Lehrmann may have been mentioned.

Get in touch

For more information on defamation, take a look at our ongoing series of articles on defamation and our article on Lehrmann. If you think you have been defamed, may be defaming others, or have any questions regarding defamation law, please contact Mark Schneider or Georgina Buckley of our litigation and dispute resolution team.