Page 65 - Print21 magazine Mar-Apr 2023

On 1 July 2021, the Defamation Act 2005 (NSW) was amended to introduce a new threshold
requirement in Section 10B, a “serious harm” test, which applies to all defamatory publications occurring after
1 July 2021.
It is no longer sufficient for person to prove that they have been defamed by someone, they must also establish that the defamatory material caused, or is likely to cause, “serious harm” to their reputation.
The purpose of the amendment was to prevent defamation claims being brought for trivial, frivolous or vexatious claims, often referred to as “backyard claims.” There had been
a significant increase in defamation claims of this nature being brought over the last fi e to 10 years, in particular in relation to publications on forums such as Facebook, Twitter and Instagram. Although the person suing for defamation was able to establish that the statements made about them were defamatory, there was often minimal harm caused to their reputation, and the damages awarded to them were therefore minimal. Often their legal costs far outweighed any damages they were awarded.
The purpose of the new threshold requirement is to make it more difficult f
a person to sue for defamation.
As it is a “threshold” requirement, a defendant in a defamation case can make an application to dismiss a claim against them at an early
stage of the proceedings, to avoid the wasted time and expense involved
in preparing evidence and preparing for a final hearing. In a recent case
(Scott v Bodley [2022] NSWDC 459), the Judge expressed the view that the determination of “serious harm” should happen as soon as possible unless, there were special circumstances warranting deferral. It should be the norm, rather than the exception, to bring an early application to consider the “serious harm” element, if one of the parties (or the Judge) considers
it appropriate.
SO JUST WHAT IS ‘SERIOUS HARM’?
There have been a number
of decisions handed down by Australian Courts over the last
12 months which give some guidance about the things a Court will look at when determining whether serious harm has occurred.
Some of the relevant factors are the following:
Cause – a claimant must
establish a direct causal link between the defamatory publication and the serious harm to their reputation. An inference that serious harm could occur is insufficient. In a recent case o Martin v Najen [2022] NSWDC 479, the Court held that “serious harm requires fact-rich proof of harm which is actually or likely to be serious.”
Wal Abramowicz is senior lawyer
at Fox & Staniland in Gordon
NSW. He can be contacted there or by email wal@ foxandstaniland. com.au
1
The scope and scale of the publication – this involves looking at the length of time the publication was available to be accessed by the public, as well as the size of the audience that viewed it. Generally,
the longer a publication has been online and the wider the audience, the more likely it is that a person will have suffere serious harm. A defamatory statement that was online for less than 24 hours before it was taken down, and which was accessed/read by a handful of
people, is much less likely to cause serious harm
than a statement that has been online for
months and/or read/shared
by thousands or millions
of people.
ABRAMOWICZ | LEGAL ISSUES |
Serious harm
Wal Abramowicz outlines how the defamation laws have changed to make it harder to sue someone if you think they have defamed you.
2The composition of the audience of the publication – if the publication has only been viewed by a small audience, none of whom were persuaded to change their opinion about the person defamed, or believed the truth of what was published, it is extremely unlikely that
any serious harm will have been suffered
3
In this case, videos were
posted on Instagram about the claimant that implied that he was
a paedophile, racist and attacked Muslims. The serious harm threshold was satisfied in this
case – the claimant was able to prove that he had been threatened with serious physical injury and professional harm, which had serious implications for his health and personal security. There was also strong evidence of an extensive grapevine effect
‘Serious harm’ has absolutely nothing to do with the hurt
feelings or embarrassment suffered by the person who has been defamed, no matter how significant. It is only the harm to that person’s reputation, not to themselves/
their feelings.
If you believe you have been
defamed and are considering suing someone for damages, it is important that you have evidence available (prior to issuing a concerns notice, which is the first step in a defamation claim) of
the harm that has been caused to you. Contact Fox & Staniland for a confidential discussion about your legal rights.
MARCH/APRIL 2023 65