Triviality, proportionality and the minimum threshold of seriousness in defamation law

Abstract

Dealing with trivial defamation claims has been of increasing concern in the United Kingdom, Australia and New Zealand. This is consistent with the need to deploy finite resources allocated to the civil administration of justice so as to promote the just, quick and cheap resolution of disputes. Under Australian law, there is a statutory defence of triviality - a longstanding feature of New South Wales law, but, due to its drafting and its application, it is difficult to apply in practice. As a defence, it is only considered after liability has been established. The defence of triviality may not, therefore, be the most effective means of dealing with trivial defamation claims. Over the last 15 years, English courts have developed two, more direct means of dealing with trivial defamation claims: the principle of proportionality (also known as the Jameel principle) and the minimum threshold of seriousness. These principles have had a mixed reception in Australian law. As Australia reviews its defamation law, it is timely to analyse the ways in which Australian law might most effectively deal with trivial defamation claims. This article argues that, although the defence of triviality, the principle of proportionality and the minimum threshold of seriousness originates from different sources and serve slightly different purposes, the effective treatment of trivial defamation claims requires a holistic consideration of their interaction. This article also examines the statutory enactment of a threshold for serious harm under s 1 of the Defamation Act 2013 (UK) and considers its benefits and limitations, if a similar approach is adopted under Australian law.