MATRIX LEGAL

Defamation occurs when a statement is communicated to a third party that damages someone's reputation. Under the Defamation Act 2005, uniform legislation applies across all Australian states and territories.

A defamation claim requires three elements: (1) the material was published to at least one third party, (2) the material identifies the plaintiff, and (3) the material is defamatory — meaning it would lower the plaintiff's reputation in the estimation of reasonable members of the community.

The distinction between libel (written) and slander (spoken) was abolished in 2006 under uniform legislation. All forms of publication — written, spoken, broadcast, or online — are now governed by the same framework.

Since the Stage 2 defamation reforms, plaintiffs must establish that the publication has caused, or is likely to cause, serious harm to their reputation (section 10A, Defamation Act 2005). For corporations with fewer than 10 employees and not-for-profits, serious financial loss must be demonstrated.

This threshold is determined by the court as a preliminary question before the matter proceeds to trial. It functions as a filter against trivial claims while preserving access to justice for genuine cases.

As demonstrated in Singh v Singh [2025] FCA 1531, causation of serious harm is assessed on a case-by-case basis. The Federal Court confirmed that a subsequent, more authoritative publication can intensify and lend credibility to earlier anonymous allegations — independently satisfying the serious harm element.

Australian defamation law recognises a number of complete defences:

• Truth / Justification — the publication is substantially true.
• Contextual Truth — although some imputations are false, the overall sting of the publication is true.
• Absolute Privilege — statements made in parliamentary or court proceedings cannot ground a defamation claim.
• Qualified Privilege — communications made in situations where there is a duty or interest to communicate, and the recipient has a corresponding interest in receiving the information.
• Honest Opinion — an opinion (rather than a statement of fact) based on proper material that a person could honestly hold.
• Innocent Dissemination — where a distributor had no knowledge of the defamatory nature of the material.
• Public Interest (introduced 2021) — publication of matter concerning an issue of public interest, where the defendant reasonably believed the publication was in the public interest. Applied in Al Muderis v Nine Network Limited [2025].

The previous triviality defence was effectively replaced by the serious harm threshold introduced in the 2021 Stage 2 reforms.

Australian defamation law provides for several categories of damages:

• General damages (non-economic loss) are capped at $500,000 from 1 July 2025 (indexed annually).
• Special damages for proven financial loss are uncapped and must be specifically pleaded and proven.
• Aggravated damages are available where the defendant's conduct (such as a failure to apologise, repetition of the publication, or improper conduct in litigation) warrants an additional award. Aggravated damages can exceed the general damages cap.
• Exemplary damages are available in rare cases where the defendant's conduct is particularly egregious.

In Rush v Nationwide News [2019], the Federal Court awarded $850,000 in general damages plus $1.92 million in special damages — one of the largest defamation awards in Australian history. This illustrates that the statutory cap on general damages does not limit total recovery.

A defamation matter typically follows this process:

1. Concerns Notice — A formal notice identifying the defamatory material, the imputations conveyed, and the harm caused. This is a mandatory pre-condition to commencing proceedings in most jurisdictions.
2. Response / Offer to Make Amends — The recipient has 14–28 days to respond or make an offer to make amends (apology, correction, damages payment). An adequate offer is a complete defence.
3. Filing of Statement of Claim — If the matter does not resolve, proceedings are commenced in the appropriate court.
4. Serious Harm Determination — The court considers, as a preliminary question, whether the plaintiff has established the serious harm threshold.
5. Defence — The defendant files a defence identifying any defences relied upon.
6. Discovery — Exchange of documents relevant to the proceedings.
7. Mediation — Most courts require the parties to attend mediation. The majority of matters resolve at this stage.
8. Trial — If unresolved, the matter proceeds to trial before a judge (jury trials have been abolished in most jurisdictions).
9. Judgment & Damages — The court delivers judgment and assesses damages if the claim is established.

Time Limit: You must commence proceedings within one year of publication. Extensions up to three years are available only in exceptional circumstances. Act promptly.

Online defamation has become the primary battleground in modern reputation law. Key issues include:

• Google reviews — Defamatory reviews can be the subject of court orders for removal and identity disclosure, as established in our landmark 2020 Federal Court case.
• Facebook, Instagram, Twitter/X — Posts and comments on social media platforms are publications for the purposes of the Defamation Act 2005.
• Platform liability — Following Fairfax Media v Voller [2021] HCA 27, the High Court confirmed that page administrators may be liable as publishers of third-party comments posted on their pages.
• Anonymous posters — Courts can make preliminary discovery orders compelling platforms to reveal the identity of anonymous users.
• Employer liability — Employers may be vicariously liable for defamatory statements made by employees online in the course of their employment.
• The right to be forgotten — While not yet formally recognised in Australian law, legal submissions to search engines and platforms can achieve de-indexing and removal of harmful content.

A concerns notice is a formal pre-litigation notice required under the Defamation Act 2005 before you can commence defamation proceedings in most Australian jurisdictions.

A valid concerns notice must:

• Identify the defamatory matter (with sufficient particularity to enable the recipient to identify the publication);
• Specify the imputations the plaintiff contends are conveyed;
• Identify the harm the plaintiff alleges was caused or is likely to be caused.

Upon receiving a concerns notice, the defendant has 14 days (in some jurisdictions, 28 days) to respond with an offer to make amends. A genuine offer to make amends — which may include an apology, a correction, or damages — can be a complete defence to the proceedings if the plaintiff unreasonably rejects it.

Strategic considerations: A well-drafted concerns notice sets the tone for the litigation and can be a powerful tool in achieving early resolution. Poorly drafted notices may be defective and expose the plaintiff to costs. Expert advice at this stage is critical.

Defamation is not limited to individuals. Businesses face specific challenges in the digital era:

• Google review disputes — A pattern of false or fake negative reviews can devastate a business's reputation and revenue. Legal action can compel removal and identify perpetrators.
• Competitor defamation — False statements made by a competitor about your business or products may give rise to claims in defamation as well as misleading and deceptive conduct under the Australian Consumer Law.
• Employee defamation — Former employees making false statements about your business on social media or to third parties can cause serious harm.
• Social media attacks — Coordinated campaigns of false statements on social platforms can cause serious financial loss.
• Eligibility: Only corporations with fewer than 10 employees and not-for-profit organisations can sue for defamation in Australia. Larger corporations may have other legal remedies including injunctions and trade practices claims.