The serious harm threshold in Australian defamation law

Before July 2021, a person who said something defamatory about you could be sued whether or not it did you any real damage. Damage was presumed. The uniform defamation reforms that took effect that year, in every state and territory except Western Australia and the Northern Territory at first, added a threshold: the publication must have caused, or be likely to cause, serious harm to the reputation of the person.¹

The test

Serious harm is an element of the cause of action, which means the person suing has to prove it, not the publisher.¹ For a company that can sue at all, which is only a small one with fewer than ten employees or a not-for-profit, the harm must be serious financial loss.

What counts as serious is decided on the facts: the size of the audience, the gravity of the imputation, who read it and what they did as a result. A false post read by a handful of people who did not believe it may not clear the bar. A false article about a person's business, read by their customers, usually does.

Deciding it early

A court can decide serious harm as a preliminary question, before the rest of the case is heard, and the reforms encourage it to.¹ The purpose is to stop trivial claims before both sides have spent a year on them.

The concerns notice

The same reforms made a concerns notice compulsory. Before starting proceedings, the aggrieved person must send the publisher a written notice setting out the publication, the imputations, and the harm, and then wait for the offer-to-make-amends period, usually 28 days, to run.³ A claim started without one is liable to be struck out.

For a publisher this is the moment to correct, clarify or apologise. For the person defamed it is the moment to be precise: a concerns notice that cannot identify serious harm signals the claim that would follow.

Why it matters for reporting

The threshold does not make it safe to publish false material about people. It means that the question in any dispute is now framed around real consequences: what was said, to whom, and what happened next. Reporting that rests on documents, names its sources and prints the subject's reply is built for that question.²