The serious harm threshold in Australian defamation law.

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 law in Australia changed in 2021. A person who sues over a publication must now prove, as an element of the claim, that the publication has caused or is likely to cause serious harm to their reputation. This is the serious harm element. It is not a technicality. It is often the first question a court decides, and it ends some claims before they reach a trial.

The rule sits in section 10A of the Defamation Act 2005 (NSW) and, in the same terms, in section 122A of the Civil Law (Wrongs) Act 2002 (ACT). Both come from the Model Defamation Amendment Provisions agreed between the states and territories. New South Wales and most other states began the reform on 1 July 2021. The ACT adopted the same rule, and Western Australia followed later.

What does serious harm mean?

Section 10A says the publication of defamatory matter about a person must have caused, or be likely to cause, serious harm to that person's reputation. Serious means more than passing hurt or mild embarrassment. The harm has to be real, and the person suing has to prove it on the balance of probabilities. The fact that words were unpleasant, on its own, does not meet the test.

Why the law changed

For a long time the common law presumed damage. Once a plaintiff showed the words were defamatory, the law assumed harm had followed, and the plaintiff did not have to prove it. That let small claims run, including disputes between neighbours and brief online spats read by a handful of people. The serious harm element takes the presumption away. Harm is now a matter for proof, and the aim of the change was to keep minor grievances out of the courts.

Who decides, and when?

The serious harm element is decided by the judge, not a jury. A party can ask the court to decide it before the trial starts, as a separate question. That gives both sides an early gate. A plaintiff with a strong case can clear it and press on. A defendant faced with a weak claim can seek to have it struck out early, before the cost of a full hearing. Courts have used this power to end claims that could not show real harm.

How courts have approached it

The first Australian superior court to consider the element was the Supreme Court of New South Wales in Newman v Whittington [2022] NSWSC 249. The court held that section 10A makes serious harm a fact the plaintiff must prove in every case the section covers. In deciding the question, courts look at the meaning of the words, how widely they were published, who read or heard them, and the effect on the plaintiff. The court drew on the United Kingdom decision in Lachaux v Independent Print Ltd [2019] UKSC 27, which read the same phrase in the English Act as calling for proof of harm by reference to the actual impact of the publication rather than the words alone.

What about companies?

Most companies cannot sue for defamation at all. Only an excluded corporation can, meaning a not-for-profit or a business with fewer than ten employees. For those that can sue, the bar is higher again. Harm to a corporation's reputation is not serious harm unless it has caused, or is likely to cause, serious financial loss. A company must therefore prove financial loss.

What this means in practice

For a person thinking about suing, the practical step is to gather evidence of impact. That can include the reach of the publication, who saw it, what was said back to the person, any lost work or business, and the spread of the words beyond the first audience. For a person who has published something and then received a complaint, serious harm is worth testing early. Many complaints do not meet the threshold, and a concerns notice can be answered on that basis before a claim is filed.

Frequently asked.

What is serious harm in defamation law?

It is an element a person must prove to sue for defamation. Under section 10A of the Defamation Act 2005 (NSW), the publication must have caused, or be likely to cause, serious harm to the person's reputation. Passing hurt or embarrassment is not enough.

Do you still have to prove damage in a defamation case?

Yes. For cases the section covers, the old common law presumption of damage is gone. The person suing must prove serious harm as a fact, on the balance of probabilities.

Can serious harm be decided before the trial?

Yes. A party can ask the court to decide the serious harm element as a separate question before the trial begins. A judge decides it, not a jury.

Can a company sue for defamation in Australia?

Only an excluded corporation can, meaning a not-for-profit or a business with fewer than ten employees. It must also show the publication has caused, or is likely to cause, serious financial loss.

What evidence shows serious harm?

Courts look at the meaning of the words, how widely they were published, who read or heard them, and the effect on the person, including lost work and the spread of the words to others.

When did the serious harm test start?

In New South Wales and most states it began on 1 July 2021. The ACT adopted the same rule in section 122A of the Civil Law (Wrongs) Act 2002, and Western Australia followed later.

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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