Sticks and stones and serious harm: the 2021 defamation reforms - two years on (Part 1)
The serious harm threshold was largely a response to public concern that relatively minor defamation claims were being pursued despite ultimately resulting in minor damages awards relative to the legal costs of the proceedings. For example, one case in 2011 resulted in an award of damages of $5000 to the claimant who was defamed by a statement that she was having an affair with a colleague, before being overturned on appeal and then pursued through to the High Court (which upheld the decision of the Court of Appeal). The total legal costs expended in litigating this issue to the High Court of Australia would likely have been in the millions of dollars, which dwarfed the amount of damages sought – not to mention it representing a serious drain on the public purse and limited Court resources.
What is serious harm?
Two years on, the Court has now had time to consider the serious harm threshold and answer an important question flowing from the threshold question: when will harm to a person’s reputation be sufficiently serious such that the claimant should be allowed to pursue a claim for damages for defamation through the Court? So far, the Court has held that serious harm is:
- more than substantial but less than grave
- measured by a combination of the inherent tendency of the words and their actual impact on those to whom they were
- communicated (in other words, it requires that the people who read or heard the imputation actually believed it)
- not a numbers game, although the extent of the publication is a central factor
- need not be permanent but doesn’t extend to transitory or ephemeral harm to a person’s reputation
- may arise where a ’grapevine effect‘ magnified the impact of the original communication of a defamatory imputation.
The Court has also held that serious harm is not:
- Merely harm to feelings or mental health – no matter how serious. Although hurt feelings or mental harm aren’t relevant to the threshold questions, they are relevant to an assessment of any damages payable and may be a factor that increases the amount of compensation paid to a successful claimant in a defamation action.
- Harm to reputation that the defamatory imputations have not caused.
- Determined by the seriousness of the imputation, by but the seriousness of the impact on reputation. In other words, a very grave imputation that is communicated to only a couple of people who know the claimant well and don’t believe the defamatory statement is unlikely to cause serious harm.
Helpfully, the Court has also found that where a party sues another for multiple instances of publication of a defamatory imputation, there is no requirement that each separate publication be shown to have separately caused serious harm – one publication giving rise to serious harm is enough.
Since the threshold was introduced, the Court has heard several cases that have been rejected because they failed the serious harm threshold – for example:
- a Google review left by a customer of a jewellery store, who said that the service she received was rude and that she paid twice as much as she would have elsewhere
- where a claimant sued her former employer for making a defamatory statement in a series of Facebook messages to the claimant’s new employer that the claimant had stolen pairs of scissors during her former employment.
- Early determination of questions relating to serious harm and the Court’s active role
The legislation provides that any questions of serious harm must be determined as soon as possible and before trial unless special circumstances warrant that question being deferred until trial. Recent jurisprudence has also recognised that the legislation grants the Court a special role to play on this issue. The Court may list a motion of its own volition to determine the question of serious harm without any prior application or complaint by the defendant. Given the requirement for early determination of the threshold question, and the Court’s active role in monitoring whether the threshold has been met, anyone seeking to bring a defamation claim would be well advised to carefully consider the serious harm threshold at the very outset of their claim.
Lessons for litigants
Prospective claimants who wish to bring a defamation claim must prepare that claim recognising that any doubt about whether the claimant has suffered serious harm is likely to be raised well before trial – by the Court, if not the defendant. Prospective claimants must carefully consider the serious harm threshold and evaluate whether their claim meets that threshold. If it is not apparent that the serious harm threshold will be met, then realistically, the claim should not be pursued.
The serious harm threshold also presents a new opportunity for defendants seeking to defeat a defamation claim at an early stage. If a defamatory statement has been made to only a handful of people, the relevant imputation is not serious and/or there is no clear evidence that the recipients of the statement believed the imputation, the harm caused by the statement may not be serious enough to satisfy the threshold. Defendants should apply at an early stage for the question of serious harm to be determined as a threshold issue – with the goal being to defeat the claim before significant expense is incurred.
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