Ten takeaways on the current state of serious harm in Australian defamation law

In November 2021, the Uniform Defamation Acts repealed the triviality defence and introduced a new element to the cause of action for defamation: the requirement to demonstrate serious harm.

This new element to the cause of action was designed to “deal with insignificant claims early in the proceedings”, and to “encourage the early resolution of defamation proceedings by enabling the issue to be dealt with as a threshold issue”.

As a (relatively) recent addition to Australian law, it is worth reviewing the state of the serious harm element, including how it is beginning to be applied by Australian appellate courts.

At the time of this article, the serious harm element has not been considered by the High Court, and has only been considered in depth by two appellate courts.

The "serious harm element", found at section 10A of the Act, is based on section 1 of the Defamation Act 2013 (UK). English decisions have been held to be “useful in interpreting our Act”, including recently being applied by the Federal Court in Selkirk v Hocking (No 2) [2023] FCA 1085.

The leading case to consider the principle arguably remains the UK Supreme Court decision of Lachaux v Independent Print Ltd [2020] AC 612, recently applied by the NSW Court of Appeal in Rader v Haines.

Distilling the principles from Lachaux, other leading authorities from the United Kingdom, and recent appellate authorities in Australia, the following key principles emerge in assessing whether the serious harm threshold has been met.

1. Serious harm is a threshold element of the cause of action for defamation. It is necessary to show that the publication has caused or is likely to cause serious harm to a person’s reputation (section 10A of the Act).
2. “Serious” harm involves more than “substantial” harm, but is not as serious as “grave” harm.
3. Determining whether serious harm has or is likely to occur is always highly fact.
4. The requirement is to show serious harm caused to the reputation of the claimant in the eyes of the publishees, and not damage to the claimant's reputation in the eyes of people generally.
5. The test focuses on the seriousness of the harm to the aggrieved person’s reputation, and not the seriousness of the imputation itself. Harm is determined by looking at the impact of the imputation, not just the meaning of the words.
6. Consequentially, evidence that a claimant had a poor reputation, or no reputation to lose, may be admissible on the question of serious harm and could reduce or even negate the damages payable.
7. The inclusion of the words “or is likely to cause” in section 10A is plainly forward looking. It encompasses circumstances where at the time the proceeding was commenced, serious harm had not yet been suffered but was likely to be caused at a later point in time.
8. A delay bringing a claim may undermine an argument that an aggrieved has suffered serious harm: it could suggest they were “not particularly troubled” by it.
9. The duration of the harm said to have been suffered is a significant determinant, and reputation harm suffered for only a short duration may be a “significant hurdle”.
10. Claimants must establish a casual link between the publication of the matter complained of, and the serious harm itself: serious harm which is caused due to some other matter will not satisfy the element under the Act unless it flows directly from the publication of the defamatory matter.