If you want to sue in defamation, your reputation better be harmed... seriously
Since 1 July 2021, defamation laws have introduced a requirement that a publication has caused (or is likely to cause) serious harm to a plaintiff’s reputation. In this article, we explore two recent judgments which are the first to apply the serious harm element and we discuss their implications.
The new serious harm element
Section 10A of the relevant legislation provides:
“It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.”
The harm which is done (or likely to be done in the future) must be to the reputation of the plaintiff or, where the plaintiff is a corporation, the serious harm must cause (or be likely to cause) the corporation serious financial loss.
Serious harm is not mental anguish, upset or distress. While hurt to a plaintiff’s feelings, anxiety and humiliation can be relevant factors in awarding damages, they are not relevant to the threshold question of serious harm to the plaintiff’s reputation.
“Serious” harm involves harm that is more than merely substantial, though it need not be grave. Conversely, a grave imputation may not result in serious harm where the publication is to a small number of persons who are well acquainted with the plaintiff such that they are unlikely to believe it.
The serious harm element is different to the former defence of triviality (now repealed) and can form the basis of an early strike out application. Judges (rather than juries) are empowered (on their own motion or on the defendant’s application) to determine whether the serious harm element has been established on the basis of the pleadings alone and without further evidence. This determination can occur at any time before trial.
First preliminary determination of the serious harm element
A Facebook Messenger message sent to one person was the first occasion for the courts to consider and determine that the serious harm element was not satisfied and the case was dismissed after a one day hearing (see Zimmerman v Perkiss  NSWDC 448).
While defamation proceedings are notoriously costly and protracted (only in part due to the prevalence and necessity of interlocutory hearings), this case shows how defendants can have unmeritorious defamation claims dismissed within a matter of months if the particulars fail to show that there has been serious harm suffered to the plaintiff’s reputation.
First Australian court finds that the serious harm element was satisfied
Conversely, Martin v Najem  NSWDC 479 is the first time an Australian court has considered whether the matters complained of caused, or were likely to cause, serious harm to the plaintiff’s reputation. In this case, the Court found without hesitation that each of the matters complained of were, individually and jointly, capable of causing serious harm to the plaintiff.
In assessing the serious harm element, the Court held that:
“Serious harm requires fact-rich proof of harm which is actually or likely to be serious, rather than inferences of serious harm and a tendency to cause being drawn from the number of persons who were in the audience or other generalised statements. There must be causation between the publication and the serious harm” (at ).
While the publications were “too gross to repeat”, the Court cited the following factors which gave rise to serious harm in each of the publications:
- the publications were unique, in terms of serious harm considerations, in that the imputations were published in the context of the defendant asserting that the plaintiff deserved to be harmed because of the asserted truth of their contents and the defendant called on his Instagram followers to do so;
- the extreme nature of the allegations;
- the manner of publication was a key feature in that the defendant was making a call to arms to his supporters – he threatened to harm the plaintiff and called on his supporters to help him (noting the Court found that the reference to the manner of publication in the concerns notice was treated as a form of particular of serious harm);
- the extent of the publication was very wide and the publications were available to a substantial audience on Instagram;
- there was strong evidence of an extensive “grapevine effect”;
- the damage done to the plaintiff, in terms of the impact the publications have had on his health and concerns about his security, was compounded and ongoing by reason of evidence of the allegations “sticking” due to repetition by the defendant as recently as a few days before the hearing. The impact on his health is serious and capable of itself to amount to serious harm.
The judgment describes the potential for physical harm to the plaintiff, the plaintiff’s injured feelings and the gravity of the imputations. While these factors alone are not enough to establish serious harm (noting the requirement for serious harm to reputation is concerned with actual or likely reputational damage), these factors did lead to a finding about the impact of the imputation, in all the circumstances, on the plaintiff’s reputation.
The Court ordered judgment for the plaintiff for the sum of $300,000, including aggravated damages, plus interest of $6,656. The Court also ordered the defendant to pay the plaintiff’s costs, with liberty to apply for indemnity costs and/or a gross sum costs order pursuant to section 98 of the Civil Procedure Act 2005 (NSW).
These recent judgments are the first to consider the serious harm element and are polar opposites in terms of the gravity of the imputations and the extent of the publications.
While it may be too early to say, these two judgments demonstrate the power and appropriateness of the serious harm element – it can be used as sword by:
- defendants to have unmeritorious defamation claims dismissed without the need to wait to be vindicated at trial;
- the Courts to dismiss proceedings on their own motion where the pleadings demonstrate that no serious harm has been or is likely to be suffered to the reputation of the plaintiff; and
- by plaintiffs who have suffered (or are likely to suffer) serious harm from the publication of a defamatory matter.
 Defamation Act 2005 (Vic). Section 10A, or an equivalent, is also in force in New South Wales, Queensland, South Australia, Tasmania and the Australian Capital Territory, but not in Western Australia or the Northern Territory.