As a defamation lawyer in Western Australia, I am often asked about the requirements for bringing a defamation claim.
While the WA State Government has agreed with the Federal Government and other States and Territories to introduce the "serious harm test" by amending the Defamation Act 2005 (WA) at some stage, we do not yet know when this will be legislated.
Currently, the triviality defense continues to apply to all publications in Western Australia.
The serious harm test is already in effect in other jurisdictions in Australia, including New South Wales. This arose from a two-stage review of the Model Defamation Provisions.
The serious harm test replaced the triviality defence for publications in NSW made on or after July 1, 2021. For publications before that date, the triviality defence still applies and there is no requirement to show serious harm.
Under the serious harm test, plaintiffs in defamation cases must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation.
The determination of serious harm may consider evidence such as the scale of the publication and its readership, as well as testimony from the plaintiff and other witnesses.
One notable case that addressed the serious harm test in Australia is Newman v Whittington [2022] NSWSC 249.
In this case, the court confirmed that plaintiffs must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation, abolishing the common law rule that damage was to be presumed and not proved.
The court noted that the "obvious genesis" of the serious harm element came from the equivalent provision in the United Kingdom's Defamation Act 2013, with there being "no material difference" between the two.
In Newman v Whittington, the pleadings asserted that serious harm was to be inferred from the "inherent seriousness of the defamatory imputations" and from the plaintiff's reputation as a family mediator.
The court struck out the pleadings as they did not clearly articulate an arguable case, and therefore there was no evidential assessment of whether serious harm had been established.
However, the court granted leave for the plaintiff to replead her claims of serious harm given the "novelty of the point."
In order to show that serious harm has been established in a defamation case, it is important to collate as much relevant evidence as possible.
This may include evidence of the scale of the publication and its readership, testimony from the plaintiff and other witnesses about the impact of the publication on their reputation, and any other relevant evidence that demonstrates the harm caused by the defamation.
By thoroughly preparing and presenting this evidence, plaintiffs can help to strengthen their case and increase the chances of success in a defamation claim.
As a defamation lawyer, when the test applies, it will be my job to help my clients gather and present the necessary evidence to prove serious harm and seek justice when their reputations have been wrongly damaged.
This is an example of the type of evidence that will need to be collated to show serious harm:
…
Sarah is a successful business owner who has built a reputation for herself as a trustworthy and reliable source of products and services in her industry.
However, one day she discovers that a former employee has posted a series of false and defamatory statements about her on a popular social media platform.
These statements claim that Sarah is dishonest and untrustworthy, and they are accompanied by a series of misleading photos and videos that are meant to further damage her reputation.
Sarah is devastated by these false claims and knows that they could seriously harm her business if left unchecked. She immediately seeks the help of a defamation lawyer to help her take legal action against her former employee.
To prove serious harm in her defamation case, Sarah and her lawyer gather a range of evidence to demonstrate the impact of the defamatory statements on her reputation.
This evidence includes:
Testimony from Sarah and other witnesses about the impact of the defamatory statements on her reputation, including any negative feedback or comments she has received from customers or business partners.
Evidence of the scale of the publication, such as the number of views, shares, and comments on the social media posts.
Screenshots of the defamatory statements and accompanying photos and videos, as well as any other relevant evidence demonstrating the harm caused by the defamation.
Documentation of any financial losses or other damages suffered as a result of the defamation, such as a decline in sales or loss of business opportunities.
By presenting this evidence to the court, Sarah and her lawyer are able to make a strong case that the defamatory statements have caused, or are likely to cause, serious harm to her reputation.
With this evidence in hand, they are able to seek justice for the damage caused by the defamation and help to restore Sarah's reputation in the eyes of her customers and business partners.