In July 2021, defamation legislation in most States and territories in Australia was amended to introduce a requirement that a plaintiff suing for defamation must establish that they have suffered ‘serious harm’ to their reputation.[1] This change largely mirrored defamation legislation already in place in the United Kingdom[2] and was intended to effect a significant change to the law of defamation.
Since 2021, there has been growing body of case law in which Courts have been asked to consider whether ‘serious harm’ has been suffered by a Plaintiff who sues for defamation. The recent decision of the Supreme Court of Queensland in Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192, which involved a claim for defamation in respect of an investigative podcast, has recently examined a number of relevant authorities addressing the question of ‘serious harm’ to reputation.
Reputation?
The law of defamation, at its heart, aims to protect a person’s reputation. The purpose of the law of defamation is to strike a balance between freedom of expression and a person’s right to protect their reputation. A person’s ‘reputation’ has been described as:
- ‘the regard or esteem in which that person is held by others, or what others actually think of that person’[3]; and
- ‘the settled opinion about that person within the community and not some transitory view based, for example, upon mere rumour’.[4]
Importantly, the law of defamation does not protect a plaintiff’s subjective perception of their own reputation, but rather the person’s reputation in the eyes of others.[5]
‘Serious’ harm to reputation
Whilst there is no statutory definition of what constitutes ‘serious harm’ to reputation, Courts have continued to grapple with the meaning of the phrase. In doing so, Courts have tended to apply the following principles when determining ‘serious harm’:
- the determination of ‘serious harm’ is a qualitative (not quantitative) exercise. The Court must assess all of the relevant circumstances and arrive at a conclusion on which precision will rarely be possible;[6]
- although the words of the relevant statute (i.e. ‘serious harm’) must be given their ordinary meaning, ‘serious harm’ means harm that is more than merely substantial, though it need not be ‘grave’;[7]
- a defamatory publication must do more than create a tendency to cause harm to a plaintiff’s reputation, the plaintiff must show the actual impact of a publication to a person’s reputation;[8]
- relevant factors in determining the severity of reputational harm include the meaning of the words actually used, the gravity of the defamatory publication, the extent of publication, the author of the publication, the form of publication, the identity and reaction of the audience and whether the defamatory statement was likely to be believed;[9]
- ‘serious harm’ is not satisfied by injury to a plaintiff’s feelings as a result of a defamatory publication. Serious harm is not to be conflated with hurt feelings;[10]
- the Court must ‘isolate’ the harm to reputation said to have been caused by an alleged defamatory publication. The ‘serious harm’ element is expressed in language of causation;[11]
- if a person has an existing bad reputation, that will be relevant to a determination of serious harm;[12] and
- the fact that a publication is made to a limited number of people tells against a conclusion that a publication has caused serious harm.[13]
Practical considerations – serious harm
Defamation statutes which have introduced the ‘serious harm’ requirement (such as the Queensland and New South Wales defamation acts) enable the question of serious harm to be determined at an early stage of a defamation proceeding, well in advance of any trial.
Generally speaking, Courts are usually somewhat reluctant to dismiss proceedings at an early or ‘summary’ stage, without a contested hearing. Only in the clearest of cases will a Court summarily dismiss a proceeding without a trial. There are sound reasons for this approach, including that litigants should be entitled to fully ventilate their respective claims and defences and place their case before the Court in the ordinary way, after taking advantage of the usual interlocutory processes (such as disclosure and other information-gathering procedures).[14]
However, the clear legislative policy underlying the introduction of the serious harm element in defamation legislation is that claims for defamation which involve trivial matters or minimal actual reputational harm can (and should) be brought to an early end. These types of defamation actions, which often result in legal costs entirely disproportionate to the quantum of the damages claimed by the plaintiff, are sometimes referred to as ‘backyard claims’.[15] It has been recognised that whilst a ‘serious harm’ determination may ‘shut the claimant out of a remedy’, this is the precise consequence that the legislature intended in circumstances where a defamation plaintiff cannot establish serious harm.[16]
The ability to apply for an early determination of serious harm can have significant strategic benefits for both plaintiffs and defendants. For defendants, the obvious benefit is that if they are successful (and the Plaintiff cannot demonstrate serious harm to reputation) the claim will be automatically dismissed (often with a favourable costs order) and the defendant will avoid the time and expense of defending a claim up to and including a trial. For plaintiffs, an early victory in demonstrating serious harm to reputation can provide valuable momentum in a proceeding which can then result in a more favourable settlement being achieved, avoiding a trial.
McCullough Robertson Lawyers has recently acted for the defendants in a successful application to determine serious harm to reputation, the result being that the plaintiff’s claim was dismissed. The full judgment is available here: https://www.sclqld.org.au/caselaw/148311. This was the first published decision in Queensland addressing the topic, prior to the decision in Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192.
[1] See, for example, section 10A of the Defamation Act 2005 (Qld).
[2] Defamation Act 2013 (UK)
[3] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118.
[4] Scott v Sampson (1882) 8 QBD 491.
[5] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575.
[6] Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [55].
[7] Rader v Haines [2021] NSWDC 610; Rader v Haines [2022] NSWSCA 198 at [27].
[8] Lachaux v Independent Print [2019] UKSC 2.
[9] Rader v Haines [2021] NSWDC 610; Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 at [57].
[10] Lachaux v Independent Print [2019] UKSC 2.
[11] Associated Newspapers Ltd v Dingle [1964] AC 371 at 410; Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 at [46].
[12] Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192.
[13] Selkirk v Hocking (No 2) [2023] FCA 1085, [18].
[14] Agar v Hyde (2000) 201 CLR 552.
[15] Second Reading Speech, Defamation Amendment Bill 2020 (NSW), Hansard, pp 2867-2868.
[16] Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 at [90].