A review of recent articles focussing on the Defamation Act Section 10A and the Serious Harm Threshold.

Defamation Act Section 10A

1. “An 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.”

Recent Articles

2. ‘Serious harm threshold in litigation’ (Stonegate Legal, 17 March 2024).[1]
   • Section 10A change to the Defamation Act aims to balance “the right to freedom of expression with the protection of individual reputations, ensuring that only claims of substantial reputational damage proceed to court.”
   • References the recent cases of Lachaux v Independent Print Ltd [2020] AC 612 and Rader v Haines [2022] NSWCA 198, which emphasise the “necessity for tangible evidence of reputational damage”, and that emotional distress alone will not suffice.
3. ‘Some “Serious” Developments in Defamation Law’ (K&L Gates, 21 September 2023).[2]
   • Establishes the factors that court will consider when determining whether ‘serious harm’ occurred or is likely to occur. These include:
     • The gravity of the imputations;
     • The extent of the publication;
     • The nature of the recipients and their relationship with the plaintiff;
     • Whether there is any evidence of the “grapevine effect” (i.e., allegations which spread beyond the original recipients of the publication); and
     • Any delay in commencing proceedings.

4. ‘Ten takeaways on the current state of serious harm in Australian defamation law’ (Clayton UTZ, 20 December 2023). [3]
   • Acknowledges that the ‘serious harm’ element is yet to be considered by the High Court.
   • The amended element found in section 10A is based on the UK Defamation Act 2013.
   • Highlights 10 key principles used when ruling on this element, the most significant of these include:
     • “Serious harm” need not be on the same level as “grave harm”.
     • Must show harm in the eyes of the publishees, rather than the public at large.
     • Evidence of a poor reputation held by the publisher can be admissible on a question of serious harm.
     • The phrasing “is likely to cause” includes serious harm occurring at a later point in time.
     • Delay in bringing a defamation claim can suggest a lack of serious harm.

5. ‘Defamation – what is required to establish ‘serious harm’?’ (Gadens, 25 September 2023).[4]
   • Addresses section 10A of the Defamation Act in relation to the recent case of Selkirk v Hocking (No 2) [2023] FCA 1085.
   • The key finding from the case is how the Court will assess the extent of the impugned publication. However, the Court also acknowledged that serious harm can still occur despite limited publication.
   • Emphasises why the extent of the publication should be viewed alongside the reputation of the claimant when finding serious harm.
6. ‘‘Serious harm’ to reputation – case law development in Queensland defamation law’ (McCulloughRobertson, 26 August 2024).[5]
   • The ‘serious harm’ requirement follows UK law closely and was intended to make a drastic change to defamation law.
   • Cites the recent decision of of the Supreme Court of Queensland in Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192, within which the Court discussed the relevant authorities regarding ‘serious harm’. This serves as the most recent restatement of these authorities.
   • The article then discusess the practical considerations behind the change to a ‘serious harm’ requirement. Primarily, this change enables the question of serious harm to be determined early, which can prevent trivial trials from proceeding unnecessarily.
   • Concludes by stating that underlying policy suggests that trivial matters with little reputational harm can and should be stopped from proceeding. Therefore, they imply that this change is positive for Defamation law as a whole.
7. ‘True crime podcast did not ‘seriously harm’ reputation of Shandee Blackburn’s former partner John Peros, judge finds’ (ABCNews, 27 August 2024).
   • Detailed article on the recent case Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 (mentioned in previous article).
   • Brief facts:
     • Plaintiff John Peros was previously acquitted of murdering his partner Shandee Blackburn.
     • Peros then engaged defamation proceedings against a true crime podcast for later suggesting that he murdered his partner.
     • The proceeding was dismissed early for lack of serious harm caused to his reputation.
   • Stands as a recent and topical example of the ‘serious harm’ requirement ending trivial defamation proceedings early.
8. ‘Should you care about your bad reputation? – Selkirk v Wyatt provides an update on serious harm in defamation cases’ (HamiltonLocke, 6 May 2024).[6]
   • Discusses the recent Federal Court case of Selkirk v Wyatt [2024] FCAFC 48. Here, the Court relied on case law from the UK to help guide their judgement on the serious harm requirement.
   • The main one referred to by the Court is Lachaux v Independent Print Ltd [2019] UKSC 27, within which the Court held serious harm should be based on these factors:
     • the scale of the publications;
     • the fact the statements had come to the attention of at least one identifiable person that knew the plaintiff;
     • that the statements were likely to have come to the attention of others who either knew or would come to know the plaintiff; and
     • the gravity of the statements.

9. ‘Defamation perspectives: separate ‘serious harm’ hearings and the Federal Court’ (Cooper Grace Ward Lawyers, 25 March 2024)[7]
   • This article focuses on the differences in the application of the serious harm requirement between the Federal and State Courts.
   • They base this focus on a preliminary hearing for the previously mentioned Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] where Shandee Blackburn applied for a separate determination on the basis of a lack of serious harm.
   • Although the Court ultimately found in favour of Shandee at trial, this preliminary hearing was dismissed due to a lack of suitable circumstances.
   • The Court relied on rule 01 of the Federal Court Rules for this finding, where it is stated that all issues should be heard and determined together.
   • The article argues that this goes against the purpose of the serious harm rule, which encourages early conclusions of trials. They argue that limiting separate hearings to exceptional circumstances causes discrepancies between the Federal and State Court processes for Defamation.

At Elit Lawyers, we are highly experienced in all aspects of defamation and media law. If you need expert advice, contact us personally.

Danielle Snell, Managing Partner & Co-Founder | [email protected] | 0401 812 885.

Robert McGirr, Partner & Co-Founder | [email protected] | 0413 944 023.

Article co-authored by Kieran Bull, Paralegal at Elit Lawyers.

[1] Stonegate Legal, ‘Serious harm threshold in defamation’, https://stonegatelegal.com.au/serious-harm-threshold-in-defamation/#:~:text=In%20essence%2C%20under%20Section%2010A,%E2%80%9Clikely%20to%20cause%2C%E2%80%9D%20significant.

[2] K&L Gates, ‘Some “serious” developments in defamation law’, https://www.klgates.com/Some-Serious-Developments-in-Defamation-Law-9-21-2023.

[3] Clayton UTZ, ‘Ten takeaways on the current state of serious harm in Australian defamation law’, https://www.claytonutz.com/insights/2023/december/ten-takeaways-on-the-current-state-of-serious-harm-in-australian-defamation-law.

[4] Gadens, ‘Defamation – what is required to establish ‘serious harm’?’, https://www.gadens.com/legal-insights/defamation-what-is-required-to-establish-serious-harm/#_ftnref1.

[5] McCulloughRobertson, ‘’Serious harm’ to reputation – case law development in Queensland defamation law’, https://www.mccullough.com.au/2024/08/26/serious-harm-to-reputation-case-law-development-in-queensland/#:~:text=’serious%20harm’%20means%20harm%20that,a%20person’s%20reputation%3B%5B7%5D.

[6] HamiltonLocke, ‘Should you care about your bad reputation? – Selkirk v Wyatt provides an update on serious harm in defamation cases’, https://hamiltonlocke.com.au/should-you-care-about-your-bad-reputation-selkirk-v-wyatt-provides-an-update-on-serious-harm-in-defamation-cases/.

[7] Cooper Grace Ward, ‘Defamation perspectives: separate ‘serious harm’ hearings and the Federal Court’, https://cgw.com.au/insights/defamation-perspectives-separate-serious-harm-hearings-and-the-federal-court/.