Last updated 10 June 2022

Defamatory matter

Whether a matter is defamatory is a question of fact to be determined by a court considering a number of judicial principles, the most common being whether reasonable members of the community either seeing, hearing or reading the matter will likely:

  • lead to a lowering of the relevant person’s reputation
  • lead others to think less of them
  • make others shun or avoid them
  • cause others to ridicule, hate or despise them.

Serious harm

Following amendments made to the law of defamation on 1 July 2021, the person must also prove that they suffered ‘serious harm’ as a result of any defamatory matter published after that date. If they cannot get over this threshold, they cannot commence or continue defamation proceedings in court.

Method of publication

The method of ‘publication’ is very broad and can include spoken words, written communications in books, newspapers, the internet, emails, posts on social media, tweets or text messages, photographs, cartoons, emojis or other images and even gestures.

Defences

Even if something is defamatory, the person who published the defamatory matter may have a defence and be protected from claims of defamation, for example if the content of the matter is true (or substantially true) or is spoken by a politician in parliament.

Remedies

If the court finds a person has defamed another person, it can order the person to pay monetary compensation (damages) to the person who has been defamed. The amount of the damages will depend on the loss suffered by the defamed person. The court is required to ensure that there is an appropriate and rational relationship between the serious harm sustained by the defamed person and the amount of damages awarded. The court also has power to grant an injunction to prevent the publication of defamatory matter or to restrain repetition or continuing publication of defamatory matter.

Defamation claim

A claim for defamation:

  • must be made in either the District or Supreme Court and may involve a jury
  • must prove more than minor or trivial reputation harm to have occurred by a defamatory publication
  • must prove that the defamatory publication has caused, or is likely to cause, serious harm to the reputation of the defamed person
  • must prove serious harm by reference to the consequences of the publication, rather than the publication itself
  • cannot be commenced until a Concerns Notice has been given to the proposed defendant, which informs them of the defamatory imputations alleged and the serious harm that has been caused or likely to be caused by the defamatory publication
  • must not be commenced until the period in which the defendant can make an offer of amends has elapsed
  • must be commenced within one year from the date of the publication of the matter (s 10AA Limitation of Actions Act 1974 (Qld)) (although the court has power to extend the period by up to three years if it is satisfied that it was not reasonable in the circumstances to have commenced the action within one year)
  • can result in a court ordering the unsuccessful party to pay the legal costs of the other party.

If someone has published or said something about you that others have seen or heard, and depending on the content of those words or images, in addition to a possible claim for defamation you may also have other legal avenues to consider, for example if the matters:

  • are being experienced in the workplace
  • relate to your race, sexuality, religion or a disability
  • are of a threatening or violent nature. If you do not feel safe, call police
  • include graphic photographs of you in a private act (e.g. showering or in a state of undress), call police.

If you need something removed from a social media site, the Office of the Children’s eSafety Commissioner publishes a list of social media services safety centres, which will provide you with information and contacts to assist you to make a complaint to the relevant website and ask for content to be removed. Prior to having the content removed, you should retain a copy of the content (e.g. take a screenshot or print the material).

Defamation case example

Mickle v Farley [2013] NSWDC 295 (29 November 2013)

Mr Farley, a former student at a high school in New South Wales, published a number of comments on Facebook and Twitter about the music teacher at his former high school. The comments were found to be untrue and had a devastating effect on the music teacher. The court ordered the former student to pay the teacher the sum of $105 000. Obviously, the defamatory comments were published before the introduction of the ‘serious harm’ test in July 2021.

Newman v Whittington [2022] NSWSC 249

Ms Newman brought defamation proceedings against Mr Whittington, alleging that he made 27 defamatory publications about her online, primarily via Facebook. Some of Mr Whittington’s publication were made after 1 July 2021 and therefore Ms Newman needed to overcome the serious-harm threshold and prove that the publication caused or is likely to cause serious harm to Ms Newman’s reputation.

The New South Wales court followed the approach adopted in a case in the United Kingdom Supreme Court in which the court said that:

  • ‘serious harm’ is to be determined by reference to the actual facts about its impact, not merely the meaning of the words
  • the serious-harm threshold abolished the common law presumption that a defamatory publication causes damage to reputation
  • the plaintiff (aggrieved person) must prove, on the balance of probabilities that the harm caused by the defamatory publication was or will be serious.

In this case, no evidence was led on the seriousness of the harm alleged caused to Ms Newman by the defamatory publications. Therefore, Ms Newman failed to overcome the serious-harm threshold in this case as the court was unable to assess the actual impact of the publications and whether they did cause serious harm to Ms Newman’s reputation.

Burrows v Houda [2020] NSWDC 485

The court ruled that emojis can be considered as defamatory.

In this case, Mr Houda tweeted a link to a newspaper article. A number of third parties replied to the original tweet and included emojis within their comments. The court found that the words and emojis in the comments and replies were capable of being defamatory and that an ordinary reasonable reader of tweets would come to that view. This was a case of joining the dots on social media between the emojis used and the surrounding context, which included links to articles posted in the original tweet.

A social media account holder can be a publisher of comments and replies where they have sufficient control of the account and particularly when they encourage third parties to post comments (Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27). Therefore, Mr Houda was the responsible publisher for the comments on his tweet.