False Statements Damaging Your Business? Legal Action Can Stop It.

To succeed in a defamation claim in Australia, a business must generally establish that defamatory matter was published to a third party, that the matter identified the business (directly or by implication), and that the matter caused or was likely to cause serious harm to the business's reputation. The 2021 reforms to the uniform defamation laws introduced the serious harm threshold, which applies in NSW, Victoria, Queensland, and South Australia. Under this test, a business (other than an excluded corporation) must show that the publication has caused, or is likely to cause, serious financial loss. A lawyer can assess whether your situation meets these elements.

Australian defamation law distinguishes between different types of plaintiffs. Only individuals and certain small businesses (referred to as "excluded corporations") can sue for defamation. Large corporations with more than 10 employees cannot sue for defamation in states that have adopted the 2021 reforms, but individuals within the business (such as directors or named individuals) may have personal claims. Public figures and institutions that have voluntarily entered public debate may find it harder to succeed due to the broader public interest defence. A lawyer can advise on whether your business qualifies as a plaintiff and what defences are likely to be raised.

The 2021 amendments to the uniform Defamation Acts (enacted in stages across states) introduced significant changes relevant to businesses. The most important change is the "serious harm" test, which requires plaintiffs to prove the defamatory matter has caused or is likely to cause serious financial loss (for businesses) or serious harm to reputation (for individuals). The amendments also restructured certain defences, including the public interest defence based on responsible publication, and modified the offer to make amends process. These changes mean it is more important than ever to obtain legal advice early to assess whether your matter crosses the threshold for a viable claim.

Under the 2021 reforms, only an "excluded corporation" — meaning a corporation with fewer than 10 employees that is not related to another corporation — can sue for defamation in states that have adopted the reforms. Larger companies cannot sue for defamation but may have other legal remedies available, including misleading conduct under the Australian Consumer Law (for statements about goods or services), passing off, or injurious falsehood. Individual directors or employees who are personally identified in defamatory material may also have their own defamation claims regardless of company size.

Courts can grant urgent interim injunctions requiring the removal or suppression of defamatory material where a plaintiff can show a serious question to be tried and that the balance of convenience favours restraint. Injunctions are harder to obtain in defamation cases than in some other areas of law because courts are reluctant to restrain publication before a defendant has had the opportunity to establish a defence — particularly truth. They are more likely to be granted where the publisher is known, the content is plainly false, and there is evidence of urgent ongoing harm. A lawyer can assess the prospects and move quickly if an injunction is appropriate.

Damages in defamation may include general damages for harm to reputation, special damages for quantifiable financial loss (such as lost contracts, declining revenue, or loss of clients), and in some cases aggravated damages where the defendant's conduct was particularly egregious. There is a cap on general damages in defamation matters (currently around $459,000 indexed), though this does not apply to special damages. Businesses claiming defamation typically need to demonstrate concrete financial loss or business impact to support a damages award. A lawyer can advise on the likely quantum based on the evidence available.