Defamation and the performing arts.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Defamation is the publication of material that harms a person's reputation. In Australia it is governed by largely uniform state and territory Defamation Acts, based on agreed model provisions. Reviews, satire, social media posts and comedy can all give rise to a claim, and the same law protects performers whose own reputations are attacked.

Since the 2021 reforms, which commenced on 1 July 2021 in New South Wales, Victoria, Queensland, South Australia and the ACT, a person suing for defamation must prove that the publication caused, or is likely to cause, serious harm to their reputation. This is the serious harm element in section 10A. There are also strong defences, including truth, honest opinion and a public interest defence.

What makes a publication defamatory

A publication is defamatory if it conveys a meaning that would tend to lower a person in the estimation of ordinary, reasonable members of the community. It must identify the person, even if not by name, and it must be published to at least one other person. A single post, review or on-stage remark can be enough.

The serious harm threshold

Under section 10A, serious harm to reputation is now an element the plaintiff must prove, not just an afterthought. This filters out trivial claims early. A passing insult that causes no real reputational damage will struggle to meet the threshold, which was introduced to stop defamation law being used to shut down legitimate debate.

The main defences

Truth, called justification, is a complete defence: if the substance of what was said is substantially true, there is no liability. Honest opinion protects a genuinely held opinion, on a matter of public interest, based on properly identified material that is true or privileged. This is the defence that protects reviewers and critics who make clear they are giving an opinion, not stating a fact. The public interest defence in section 29A protects publication on a matter of public interest where the publisher reasonably believed publication was in the public interest. Qualified privilege can also apply to some communications.

Reviews, criticism and comedy

A reviewer who honestly states an opinion, grounded in facts the audience can see, is well protected by the honest opinion defence. The risk rises when opinion is dressed up as fact, for example a firm claim that a producer stole money, rather than a stated view that a show was poor. Satire and comedy are not a blanket shield. Naming or clearly identifying a real person and conveying a damaging false meaning can still be defamatory, even in a comedy set.

Social media and re-sharing

Publishing online counts as publishing. Sharing, re-posting or repeating someone else's defamatory statement can itself be a publication, and the person who shares it can be liable. Performers and companies should treat social media accounts with the same care as a press release.

The concerns notice: the required first step

Since the reforms, a person who wants to sue must first give the publisher a concerns notice setting out the defamatory imputations and the serious harm, and allow a period for the publisher to make an offer to make amends. This step is a gateway to litigation and also a genuine chance to resolve the matter, for example by correction or apology, before costs mount. Damages for non-economic loss are also capped, and aggravated damages sit outside that cap.

Frequently asked.

Can a bad review be defamatory?

An honest opinion about a show, based on facts the audience can see, is protected by the honest opinion defence. A review becomes risky when it states damaging things as fact, rather than as opinion, that are not true.

What is the serious harm threshold?

Since 1 July 2021 in most states and the ACT, a plaintiff must prove under section 10A that the publication caused, or is likely to cause, serious harm to their reputation. Trivial claims will not meet it.

Is satire or comedy a defence to defamation?

Not by itself. Comedy and satire can still be defamatory if they identify a real person and convey a damaging false meaning. Defences such as honest opinion may apply depending on how the material is framed.

Can I be sued for sharing someone else's post?

Yes. Re-posting or repeating a defamatory statement can be a publication in its own right, and the person who shares it can be liable.

What is a concerns notice?

A written notice a would-be plaintiff must give before suing, setting out the defamatory imputations and the serious harm claimed, and allowing the publisher a chance to offer to make amends.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 13 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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