A new threshold test for defamation claims: the “serious harm” element

Plaintiffs seeking to bring a claim for defamation in New South Wales are now required to meet a new threshold test: the “serious harm” element.

The “serious harm” element was introduced in New South Wales through the Defamation Amendment Act 2020 (NSW), which amends the Defamation Act 2005 (NSW) (the Act). Similar changes have also been introduced in other States and Territories, with the exception of Western Australia and the Northern Territory.

The amendments are intended to minimise the disproportionate amount of the Court’s time and resources expended on many defamation claims which result in only small or nominal awards of damages. For example, in 2022 the Federal Court of Australia heard proceedings between Clive Palmer and the Western Australian Premier, Mark McGowan, in which both parties alleged the other had defamed them. After 9 hearing days, countless hours of preparation and no doubt substantial legal costs, and despite the Court finding that Mr McGowan and Mr Palmer had both defamed each other, Mr McGowan was awarded only $20,000 in damages whilst Mr Palmer was awarded a mere $5,000.

The new “serious harm” element is designed to discourage defamation claims where the likelihood or extent of any reputational harm is not significant, and ensure that the Court’s resources are better allocated to determining defamation proceedings where a plaintiff has a genuine and substantive claim for reputational damage.

Elements of a claim for defamation

The law of defamation is intended to protect a person’s reputation, character and their perception in the eyes of the general public.

To succeed in a claim for defamation, a plaintiff was previously required to establish that:

(a) the defendant made a statement or publication to a third party;

(b) the statement or publication sufficiently identifies the plaintiff; and

(c) the statement or publication contains defamatory imputations about the plaintiff.

An “imputation” is the defamatory meaning conveyed by the relevant statement or publication. A statement or publication contains a defamatory imputation if “the words tend to lower the plaintiff in the estimation of right-thinking members of society generally”: Sim v Stretch [1936] All ER 1237.

In other words, a statement or publication will be defamatory if it has, or is likely to have, the effect of damaging the plaintiff’s reputation in the eyes of a reasonable person with ordinary intelligence, experience and education: Kostov v Nationwide News Pty Ltd [2018] NSWSC 858.

You can learn more about defamatory imputations, as well as some of the defences available under the Act, in this article from our partners, Ray Travers and Leonie Kyriacou.

The amendments to the Act now require plaintiffs to also establish that they have suffered, or are likely to suffer, “serious harm” to their reputation as a result of the defamatory statements. The “serious harm” test is a threshold issue, which means that a plaintiff who fails to prove “serious harm” to their reputation cannot proceed with a claim for defamation, even if the statements are, on their face, defamatory.

What is “serious harm”?

The Act does not define “serious harm”, leaving it to the Courts to develop precedent concerning what will constitute “serious harm” to reputation.

The NSW Court of Appeal in Rader v Haines [2022] NSWCA 198 is the first decision of an appellate court in Australia which considers the meaning of “serious harm”. In that case, the plaintiff brought proceedings against his parents-in-law alleging that an email they had sent contained defamatory imputations about the plaintiff. Although the Court was required to assess the meaning of “serious harm” under the English equivalent of the Act, the Defamation Act 2013 (UK), the principles set out in that decision offer guidance as to how establishing “serious harm” will be approached under the Act.

One common misconception is that impact of a defamatory statement on the plaintiff’s emotions or feelings is relevant to the assessment of “serious harm”. However, the Court of Appeal in Rader makes it clear that “serious harm should not be conflated with hurt to feelings. However distraught the plaintiff may have been, this personal hurt is not evidence of harm to reputation…”.

So, what factors will the Court consider when assessing “serious harm”? In Rader, the Court held that the following principles are relevant to its assessment of “serious harm”:

(a) the circumstances and extent of the publication containing the defamatory imputations;

(b) whether the publication was likely to have come to the attention of others who knew the plaintiff, or would know the plaintiff at some point in the future; and

(c) the meaning of the words conveyed by the statement and the gravity of the defamatory imputations levelled against the plaintiff.

The principles set out above demonstrate that the extent to which harm to the plaintiff’s reputation is assessed as “serious” will ultimately depend on the circumstances of each case. However, on a practical level, “serious harm” may include financial loss, detriment to the plaintiff’s current employment or future employment prospects or reputational damage within the plaintiff’s relevant industry.

Implications for concerns notices

The amendments to the Act have also brought about new requirements for “concerns notices”. A plaintiff cannot commence defamation proceedings unless they have first issued a concerns notice to the defendant which complies with sections 12A and 12B of the Act. The concerns notice must:

(a) be in writing;

(b) state the defamatory imputations conveyed by the publication in question;

(c) if practicable, enclose a copy of the relevant publication; and

(d) particularise the “serious harm” which the plaintiff claims to have suffered.

The requirement for a concerns notice to particularise “serious harm” was recently considered by the District Court of New South Wales in Zimmerman v Perkiss [2022] NSWDC 448. That decision makes it clear that a concerns notice will be defective if it fails to clearly articulate the “serious harm” which the plaintiff has suffered. As a matter of best practice, these particulars should be set out under a heading styled “Particulars of serious harm.”

A concerns notice which fails to meet the strict requirements imposed under the Act may result in the Court striking out the plaintiff’s claim. Accordingly, it is critical that any person seeking to commence defamation proceedings ensures that they first issue a concerns notice which:

1. clearly and accurately articulates the defamatory imputations conveyed by the relevant publication;

2. sets out the particulars of the “serious harm” which the plaintiff claims to have suffered; and

3. otherwise complies with the requirements of the Act.

Assuming the concerns notice is valid, and the defendant fails to make an offer to amends within the time period stipulated in the notice, the plaintiff is then free to commence court proceedings against the defendant.

Further information and contact details

Pigott Stinson regularly assists clients with commencing and defending defamation claims, including with drafting and responding to concerns notices. Should you wish to discuss any aspect of this article or want legal advice about these matters, please call us on 02 8251 7777 or contact the following members of our Litigation and Dispute Resolution team:

Daniel Fleming, partner:  d.fleming@pigott.com.au
Eleni Bastoulis, associate:  e.bastoulis@pigott.com.au
Cameron Sydes, solicitor:  cameron.sydes@pigott.com.au

This publication is produced by Pigott Stinson. It is intended to provide general information only. The contents of this publication do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this publication. Liability limited by a scheme approved under Professional Standards Legislation.