A serious harm threshold for Australian defamation law

Abstract

The recent reforms to the national, uniform defamation laws introduced a new element to the plaintiff’s cause of action: serious harm to reputation. At the same time, the statutory defence of triviality was abolished. The statutory serious harm threshold now becomes the principal means by which trivial or marginal defamation claims are excluded. It represents a significant change to the cause of action in defamation and the way in which Australian defamation law thinks about damage to reputation. This article considers the implications of the statutory serious harm threshold in Australia. Given that it was modelled on the statutory serious harm threshold which operates in England and Wales under s 1 of the Defamation Act 2013, this article examines in particular what lessons may be drawn from the already substantial case law in that jurisdiction.