Defamation in NSW

In today’s digital world, your personal or professional reputation is one of your most valuable assets. A positive reputation can take years to build, but a single false and harmful statement—whether in a social media post, an online review, or a community forum—can cause significant damage.

When someone communicates something untrue that harms your reputation, you may have a right to take legal action. This area of law is known as defamation. Understanding your rights and the steps you can take is crucial to protecting your good name.

What exactly is defamation?

Defamation is the act of publishing or communicating material that damages the reputation of an individual, non-profit organisation, or small business (with fewer than 10 employees). Its purpose is to protect a person’s standing in the community, not their feelings of being hurt or offended.

The law in Australia no longer distinguishes between written defamation (libel) and spoken defamation (slander)—both are now simply treated as defamation under the Defamation Act 2005 (NSW).

The key ingredients of a defamation claim

For a claim to be successful, several key elements must be proven:

1. Publication: The defamatory material must have been communicated to at least one person other than the person being defamed. This can range from a newspaper article or television broadcast to an email, a public speech, or a Facebook post.

2. Identification: The material must be shown to be “of and concerning” the person claiming defamation. They don’t need to be named directly, as long as they are reasonably identifiable to others from the information provided.

3. Defamatory meaning: The material must carry a defamatory meaning. The test is whether an ordinary, reasonable person would think less of the person being defamed as a result of the publication. This could involve exposing them to hatred, ridicule, or contempt, or harming them in their profession or trade.

The crucial hurdle: “Serious Harm”

Following recent law reforms in NSW, there is a significant new requirement for any defamation claim. A person bringing a claim must now be able to prove that the publication has caused, or is likely to cause, serious harm to their reputation.

This threshold was introduced to ensure that the law is focused on genuinely damaging publications, rather than trivial or minor slights. Proving “serious harm” is now a critical gateway to any successful defamation action.

What should you do if you’ve been defamed?

The first mandatory step is to issue a “Concerns Notice” to the person or entity that published the material. This is a formal legal document that:

• Identifies the statements you consider defamatory.

• Explains why you believe they are defamatory and the harm they have caused.

• Specifies the remedies you are seeking (e.g., an apology, a retraction, or payment of damages).

The publisher then has an opportunity to respond with an “Offer to Make Amends”. If the matter cannot be resolved at this stage, you may then be able to commence court proceedings to seek remedies such as financial compensation (damages) for the harm caused.

How we can help

Defamation law is a highly technical and nuanced field. The introduction of the “serious harm” threshold and the mandatory Concerns Notice procedure make it more important than ever to get expert legal advice early.

Whether you believe you have been defamed, or someone has accused you of defamation, our team can:

• Assess your situation and provide clear advice on the strength of your claim or potential defences.

• Draft a comprehensive and effective Concerns Notice on your behalf.

• Help you respond to a Concerns Notice you have received.

• Negotiate with the other party to achieve a swift and cost-effective resolution.

• Represent you in court proceedings if the matter cannot be settled.

Your reputation is too important to leave to chance. Contact our team today for a confidential discussion about your legal options.

Disclaimer: The content of this article is intended to provide general information only and does not constitute legal advice. You should seek tailored legal advice for your specific circumstances before taking any action.