Defamation in Australia: Concerns Notices, Serious Harm and Defences

Australia has been called the defamation capital of the world, and it was never meant as a compliment. For years its courts were busy with claims over Facebook posts, Google reviews and group-chat messages — neighbour against neighbour, builder against customer — in which the legal costs dwarfed the damages, and the damages sometimes dwarfed the harm. In 2021 the law was substantially rewritten to change that. If what you know about Australian defamation law predates the reforms, much of it is now wrong.

The reformed law places two substantial barriers between an angry would-be plaintiff and a courtroom: a serious harm element that must be proved as part of the claim itself, and a mandatory concerns notice procedure that forces the parties to attempt resolution before proceedings can begin. Both were designed to strangle trivial claims early and to settle the rest cheaply. Used properly, they often do exactly that.

This guide explains the modern Australian regime from both ends of the dispute: who can sue and who cannot, the serious harm threshold, the concerns notice and the offer-to-make-amends machinery, the one-year limitation period, the defences, the cap on damages, and the special problems of defamation on the internet.

One law, eight parliaments

Defamation is state and territory law in Australia, but since 2005-06 every jurisdiction has enacted substantially uniform legislation based on agreed Model Defamation Provisions — the Defamation Act 2005 (NSW) in New South Wales, with substantially identical counterparts in the other states and territories. The uniform Acts abolished the ancient distinction between libel and slander: there is simply defamation, whether the words were spoken, written, posted or broadcast.

The reforms that matter today are the Model Defamation Amendment Provisions, which commenced in most states and territories on 1 July 2021. They introduced the serious harm element, made the concerns notice mandatory, added a public interest defence and a single publication rule, and tightened the damages cap. Adoption was staggered — Western Australia and the Northern Territory moved more slowly than the rest — so if your dispute has a connection to either, check which version of the law applies. A further round of amendments dealing with digital intermediaries has since commenced in some jurisdictions but not yet all. What follows describes the reformed law in force across most of the country.

Who can sue — and who cannot

Any living individual can sue over a publication that identifies them and conveys defamatory imputations about them. The cause of action dies with the person, so estates generally cannot pursue posthumous vindication.

Companies are a different story. Under the uniform Acts, most corporations cannot sue in defamation at all. The exception is an "excluded corporation": broadly, a not-for-profit, or a company with fewer than ten employees that is not related to another corporation. A nine-person plumbing business trashed in a fake review can sue; a listed company savaged in the financial press cannot — although its directors and executives can sue personally where the words reflect on them as individuals, and larger companies attack damaging falsehoods through other causes of action, principally injurious falsehood (which requires proof of malice and actual loss) and misleading or deceptive conduct where the publisher acted in trade or commerce.

An excluded corporation that does sue faces a tailored threshold: it must show the publication has caused, or is likely to cause, serious financial loss — not mere corporate embarrassment.

Serious harm: the gatekeeper

The most consequential of the 2021 changes is that serious harm is now an element of the cause of action. A plaintiff must prove that the publication has caused, or is likely to cause, serious harm to their reputation. Under the old law, a defendant could plead triviality as a defence and carried the burden of proving it; the reform abolished that defence and flipped the burden. It is now for the plaintiff to establish that the harm is serious before anything else matters.

The question is decided by the judge rather than a jury, and — critically — it can be decided early. Either party can ask the court to determine serious harm before trial, and the court can raise it of its own motion. That gives defendants a weapon the old law never provided: a realistic prospect of killing a weak claim at the threshold, before the heavy costs of a defamation trial accumulate.

What counts as serious depends on the gravity of the imputations, the scale and identity of the audience, and what actually happened afterwards. A false accusation of criminal dishonesty circulated among your professional community is one thing; an insult in a group chat read by three people who laughed and forgot it is another. Evidence of real-world consequences — lost customers, a rescinded job offer, social ostracism — carries weight, as does the grapevine effect of material that spreads beyond its first audience. Hurt feelings without reputational damage are not enough.

The concerns notice: the compulsory first move

Since the reforms, you cannot commence defamation proceedings in the reformed jurisdictions without first giving the publisher a written concerns notice and then waiting out the statutory period — generally 28 days. The days of issuing proceedings as the opening shot are over. Nor is the notice a formality: a defective one can invalidate proceedings issued on the back of it.

What the notice must contain

where the offending publication can be accessed or located — a URL, an attached copy, a broadcast date;
the defamatory imputations said to arise — the specific meanings you say the words convey, not just a complaint that the material is defamatory; and
the harm the complainant considers to be serious harm, including, for an excluded corporation, the serious financial loss claimed.

A publisher who wants more detail can request further particulars, which extends the timetable. Draft with care on both sides: the imputations in the notice frame any later proceedings, and suing on meanings never raised in the notice invites a fight about whether the proceedings were validly commenced at all.

The offer to make amends

The concerns notice starts a clock for the publisher too. Within the statutory window — generally 28 days from the notice — the publisher may make an offer to make amends: at minimum, an offer to publish a reasonable correction or clarification and to pay the complainant's reasonable expenses, and commonly also a takedown, an apology and a sum of compensation.

The regime has real teeth. If the publisher makes an offer that is reasonable in all the circumstances, stands ready and willing to carry it out, and the complainant fails to accept it, the offer becomes a complete defence to the proceedings. Refusing a sensible offer is therefore one of the most dangerous decisions a complainant can make: press on to trial, lose on the offer, and you leave with nothing but a costs bill. Publishers should treat the window with equal seriousness — the defence is only available for an offer made in time, and an early, well-judged offer is routinely the cheapest exit from a defamation dispute that either side will ever be shown.

One further comfort for a publisher weighing contrition: under the uniform Acts, an apology is not an admission of fault and cannot be used to establish liability. Apologising early costs less than most defendants fear — while a stubborn refusal to correct a known falsehood can inflate the damages later.

One year to sue — usually

The limitation period is short: one year from publication. The court can extend it to up to three years where satisfied it is just and reasonable to do so, but an extension is an application you must win, not an entitlement. Assume you have a year.

For online material, the reforms introduced a single publication rule: time runs from the date the matter was first uploaded or sent, not from each later occasion someone reads or downloads it, and republication of substantially the same material by the same publisher does not restart the clock — though publication in a materially different form can. The Acts contain machinery to stop the mandatory concerns-notice wait from stranding a complainant who serves a notice close to the deadline, but relying on it is poor planning. If you intend to sue, move early.

The defences

A defamation plaintiff does not have to prove the words were false. Falsity is presumed, and it is for the defendant to make out a defence. The principal ones are these.

Truth and contextual truth

Substantial truth is a complete defence: prove the sting of the imputations true and the claim fails, whatever the motive for publishing. Contextual truth deals with mixed publications: where the imputations that are proved true are serious enough that the remaining, unproven imputations do no further harm to the plaintiff's reputation, the defence succeeds. The 2021 reforms retooled contextual truth to cure drafting defects that had made the earlier version notoriously difficult to run.

Honest opinion

This defence protects expressions of opinion rather than fact, on a matter of public interest, based on proper material — facts that are substantially true, or stated or sufficiently notorious for the audience to judge the opinion for themselves. It is the natural home of the review dispute: "the worst meal I have eaten in years" is opinion; "the kitchen has a rat problem" is a factual allegation you had better be able to prove. The defence fails if the opinion was not honestly held.

Privilege

Absolute privilege covers what is said in parliament and in court proceedings, however malicious. Fair reports of court and other public proceedings are protected, as is the publication of certain public documents. Qualified privilege — in both its common law and statutory forms — protects communications made where the publisher has a duty or interest in making them and the recipient a corresponding interest in receiving them: a reference given to a prospective employer, a complaint to police, a report to a regulator with power to act. It is defeated by malice, and the statutory form asks in addition whether the publisher's conduct was reasonable.

Public interest and peer review

The 2021 reforms added a public interest defence modelled on the United Kingdom's: the publication concerned an issue of public interest, and the defendant reasonably believed that publishing it was in the public interest. It is aimed principally at serious journalism, and its boundaries are still being worked out case by case. A companion defence protects peer-reviewed matter in scientific and academic journals, and innocent dissemination remains available to those who merely distribute the material of others without knowledge of its content.

What you can actually win

Damages for non-economic loss — hurt, humiliation and injury to reputation — are capped under the uniform Acts. The cap is indexed annually and runs to several hundred thousand Australian dollars, but do not mistake it for a benchmark: the reforms make clear that it sets the top of a scale reserved for the most serious cases, and ordinary awards land far below it. Aggravated damages, compensating a publisher's improper conduct, sit outside the cap and are awarded separately. Damages for proved economic loss — a destroyed business, a lost position — are uncapped but must be strictly established with evidence.

Two sobering notes. Interim injunctions to restrain publication before trial are granted sparingly, because courts are reluctant to gag speech that a defence might later vindicate. And a judgment delivered two years after a viral post is a poor eraser: by then the internet has moved on, and so has the money spent getting there.

Defamation on the internet

The internet supplies most of Australia's defamation disputes and nearly all of its hardest doctrinal questions, chief among them: who counts as a publisher?

In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court held that media companies operating public Facebook pages were publishers of comments posted by third parties beneath their stories, because by running the pages they facilitated and encouraged those comments. The principle is not confined to media giants: a business, an association or a community-group administrator can be a publisher of what commenters write on its page. The practical lesson for anyone running a page that attracts hostile traffic is to moderate, restrict or switch off comments on inflammatory posts.

The High Court drew a boundary the following year in Google LLC v Defteros [2022] HCA 27, holding that Google was not the publisher of a news article merely because its search results contained a hyperlink to it: providing the link, without more, was not participation in the communication of the article's content. Legislators have since moved into the space Voller exposed, with several jurisdictions enacting further amendments that give genuinely passive digital intermediaries new defences — though adoption is, again, not yet uniform.

For a person defamed online, the practical order of operations is usually this: preserve the evidence first (screenshots capturing the URL, the date and the surrounding context), use the platform's complaints process, and direct the concerns notice at the author — the person with a name, a reputation of their own and, ideally, assets within the jurisdiction — rather than opening a jurisdictional war with a global platform.

The hard economics: use the machinery, avoid the trial

Defamation is among the most expensive litigation, per dollar recovered, that the Australian system offers. Trials are long, interlocutory skirmishing is endemic, and it is entirely possible to win at trial and still come out ruined — modest damages, a partial costs order, and years of fees. The Acts sharpen the point with their own costs rules: a party who unreasonably refuses a reasonable settlement offer risks paying costs on an indemnity basis.

So use the machinery the reforms built. If you have been defamed, work out what you actually want — usually a takedown, a correction and an apology, none of which requires a trial — and draft a concerns notice that is precise about the publication, the imputations and the harm. A well-drafted notice, read by a publisher who understands the offer-to-make-amends regime, resolves a remarkable share of disputes within weeks and at a tiny fraction of the cost of proceedings.

If you are the publisher, do not ignore a concerns notice: the 28-day offer window is a shield that expires. Assess your truth and opinion defences honestly, take advice quickly, and remember that the apology provisions make contrition cheaper than it looks. If proceedings are nonetheless served, respond within the time limits — our guide to responding to a statement of claim in Australia covers the mechanics — and check any business or professional indemnity policy for defamation cover.

The reformed law's message to both sides is the same. The serious harm threshold and the concerns notice regime exist to make litigation the last resort; treat them that way, and Australian defamation law works considerably better than its reputation suggests.

This article is published by CommonBench for informational purposes only and does not constitute legal advice. If you are weighing a defamation claim in Australia — or have just received a concerns notice yourself — and want to understand the law that applies before the costs begin, try CommonBench — AI-powered legal research with verified citations across five common law jurisdictions.