Serious Harm Assessment Lawyers — Defamation Act 2005 — All States
Serious Harm Assessment Lawyers — Can You Establish Serious Harm? Critical Threshold Advice.
Since the 2021 defamation law reforms, a claimant cannot succeed in a defamation claim without establishing that the publication has caused, or is likely to cause, serious harm to their reputation. This threshold was designed to filter out trivial claims — and a defamation lawyer must assess it honestly before advising a client to commence proceedings. We advise on the evidence needed, the strength of the serious harm element, and whether the claim is worth pursuing.
⚠ The serious harm threshold must be established as part of the defamation claim — a court can determine the serious harm issue as a preliminary question before the full trial. Get an honest serious harm assessment before commencing proceedings.
Serious Harm Law
The serious harm threshold — what it means and how to establish it
The serious harm element was introduced by the Model Defamation Amendment Provisions 2020 (enacted as s 10A of the Defamation Act 2005 (NSW) and equivalent provisions in other states). Section 10A(1) provides: "It is an element of a cause of action for defamation that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the person defamed."
For a corporation with fewer than 10 employees (not a public body), s 10A(2) provides that "serious harm" to reputation means "serious financial loss." This is a higher standard than the general serious harm threshold — the small business must establish that the defamatory publication has caused, or is likely to cause, serious financial loss, not merely serious reputational harm.
The courts have not yet settled the full scope of the serious harm requirement in Australia — the English courts' interpretation of the equivalent provision in the UK Defamation Act 2013 (s 1) provides useful guidance but is not binding on Australian courts. The English Supreme Court in Lachaux v Independent Print Limited [2019] UKSC 27 held that serious harm is a fact-sensitive question — the court must assess the actual or likely impact of the publication on the claimant's reputation, taking into account the publication's reach, the audience, the gravity of the imputation, and any evidence of actual reputational impact.
Relevant factors in assessing serious harm include: (1) the extent of publication — how many people read, saw, or shared the defamatory matter; (2) the identity of the audience — whether the audience includes people who knew the claimant or were in a position to act on the imputation (employers, clients, business partners); (3) the gravity of the imputation — an allegation of serious criminal conduct is more likely to cause serious harm than an allegation of rudeness or incompetence; (4) the claimant's existing reputation — a person with an established reputation in a particular field may be more seriously harmed by damage to that reputation; and (5) evidence of actual harm — including evidence that the publication was drawn to the attention of employers, clients, or other relevant parties and had a specific adverse impact.
Serious Harm Matters
Serious harm assessment matters we handle
Pre-claim serious harm assessment
Providing an honest assessment of whether the serious harm threshold is met before advising a client to commence defamation proceedings — including analysis of the publication's reach, imputation gravity, and available evidence of harm.
Serious harm evidence strategy
Developing a strategy for gathering and presenting evidence of serious harm — including social media analytics, evidence of the publication being shared, witness statements from people who saw the publication, and evidence of adverse impact on the claimant's relationships or opportunities.
Corporate serious financial loss
Advising small businesses on gathering evidence of serious financial loss — including before-and-after financial records, customer cancellation records, and evidence of contract losses or credit relationship damage caused by the publication.
Serious harm as preliminary question
Managing serious harm as a preliminary question in defamation proceedings — advising on whether to consent to or resist an application by the defendant to have the serious harm question determined before the full trial.
Challenging serious harm (defendants)
Advising defamation defendants on challenging the claimant's ability to establish serious harm — particularly where the publication had a limited audience, the imputation was relatively minor, or there is no evidence of concrete reputational impact.
Likely harm analysis
Advising on "likely to cause" serious harm — where the publication is recent and actual harm has not yet manifested, but the publication's reach and the gravity of the imputation make serious harm likely.
Frequently Asked Questions
Serious harm assessment questions answered
Can a defamation claim succeed if the publication was seen by only a small number of people?
It depends on who those people were and what impact the publication had. The serious harm element is fact-sensitive — a publication seen by very few people can still cause serious harm if those people were in a position to act adversely on the imputation (an employer, key client, or business partner). A defamation lawyer advises on the evidence of impact — not just raw audience numbers — in assessing the serious harm element.
Does the claimant need to wait for actual harm to materialise before commencing proceedings?
No — s 10A(1) also covers publications that are "likely to cause" serious harm. The claimant can commence proceedings before actual harm has manifested where the nature of the publication and the audience makes serious harm a real and substantial risk. The claimant must adduce evidence that serious harm is likely — not merely possible.
At what stage of proceedings is the serious harm element determined?
At trial as part of the defamation claim — but the court may order it as a preliminary question under s 10A(3) Defamation Act 2005 (NSW) if efficient to do so. If the claimant fails to establish serious harm at the preliminary question stage, the proceedings are dismissed. A defamation lawyer advises on whether having serious harm determined as a preliminary question is strategically preferable for the claimant or the defendant.