Written by Lucy Diggle and Principal, Jennifer Tutty

In the news: Prince Harry’s Memoir

Following the recent mourning period for Queen Elizabeth II, British tabloids and culture critics have been eagerly speculating on the potential impact of the Queen’s passing on the publication of Prince Harry’s highly anticipated memoir. The prince’s memoir, announced last year, forms part of a $27 million dollar publishing deal with Penguin Random House, who have already launched pre-order sales.  

A recent statement released by the publisher, announcing the book’s title, ‘Spare’, and release date (10th January 2023) has all but confirmed the memoir will be the provocative tell-all tale that was originally promised.

Perhaps unsurprisingly, this development has sparked significant media interest in whether any future defamation claims may be brought by members of the royal family for reputational loss suffered once the memoir is published.

Whilst this will be a question for the UK courts, this conversation prompts us to reflect on our own defamation laws in Australia. This includes considering the interpretation of recent changes to key legislation. 

In the courts: Updates to Australian defamation law

Defamation is the communication or publication of any defamatory imputation (i.e. a negative claim) made by a third party about another person, without lawful excuse.

In 2021, each state and territory across Australia, except for Western Australia and the Northern Territory, enacted legislation to give effect to the Model Defamation Amendment Provisions 2020.

One important development within the reformed legislation across Victoria, New South Wales, South Australia, and Tasmania is the introduction of a ‘serious harm’ threshold. This means that for defamation claims, an individual must be able to prove that the defamatory publication caused or is likely to cause serious harm to their reputation.  

The intended purposes of this threshold are to:

– Prevent plaintiffs from bringing frivolous and trivial defamation claims;

– Protect innocent defendants from the cost and stress of a defamation lawsuit; and

– Better reflect the aims of Australia’s defamation laws, without unduly limiting freedom of expression.

One further development under the amendments includes an equivalent threshold for companies. If a company is not-for-profit or has less than 10 employees, it may bring a claim in defamation provided it can establish ‘serious financial loss’. 

Interpretation of the serious harm test: Newman v Whittington [2022] NSWSC 249

Although the terms ‘serious harm’ and ‘serious financial loss’ are not defined in any of the defamation acts affected by these reforms, recently the test for serious harm was interpreted in Newman v Whittington [2022] NSWSC 249 (Newman). In that case, the court suggested that the UK case of Lachaux v Independent Media [2019] UKSC 27 (Lachaux) should be followed in Australia.

In Lachaux, the court held that the ‘serious harm’ threshold abolished the UK’s common law presumption that damage to reputation be presumed in defamation claims. Effectively, damage to reputation (caused by the defamation) now has to be proved, as it is no longer presumed.

This interpretation clarifies that the plaintiff needs to provide evidence regarding the actual impact of the publication.

What will amount to ‘serious harm’?

Two recent Australian cases provide useful examples of where serious harm will and won’t be established.  

Zimmermann v Perkiss [2022] NSWDC 448 (Zimmerman)

The recent case of Zimmermann is Australia’s first preliminary determination of ‘serious harm’ following the 2021 reforms.

In this case, the owner of a dog grooming salon (the Defendant) sent a series of disparaging Facebook messages about an old employee (the Plaintiff) to that person’s new employer.

In making the decision that the Plaintiff did not suffer serious harm to their reputation, the judge placed significant weight on the fact that the Facebook messages sent to the new employer didn’t significantly impact their opinion of the Plaintiff. Rather, the new employer suspected the Defendant was a disgruntled ex-employer.

Zimmermann reveals that claims published for a limited audience, lacking concrete evidence of serious harm, and constituting low damages, will not pass the serious harm test.

Martin v Najem [2022] NSWDC 479 (Martin)

The case of Martin, heard just 10 days after Zimmermann, is Australia’s first substantive judicial decision on the meaning of serious harm.

In making sense of the amendment, the judge underscored the requirement for ‘fact-rich proof of harm, which is actually or likely to be serious, rather than inferences of serious harm’.

Usefully, a series of factors relevant to the determination of serious harm emerged in her Honours analysis, including:

– The extremity of the defamatory imputation;

– The manner in which the publication was made;

– The extent of the publication; and

– The damage to the plaintiff’s mental and physical wellbeing.

In this case, the harm suffered was deemed to be sufficiently serious. The allegations in question included an assertion that the Plaintiff was a paedophile (a serious offence that carries significant stigma). Additionally, the Defendant went to great lengths to undermine Instagram’s abuse policies and publish his statements. Finally, the defamatory publication was shared and reshared, creating a grapevine effect that reached tens of thousands of people.

In the studio: How Studio Legal can assist you

We understand that it can be burdensome for individuals and businesses to navigate Australia’s prickly defamation landscape. Here at Studio Legal, we help our clients to stay on the right side of defamation law, by helping to protect and defend individual and business reputations.

Written by Lucy Diggle and Principal, Jennifer Tutty

Published 24 November 2022.

Further Information

If you have any legal questions relating to defamation law, please contact us through our online form or at hello@studiolegal.com.au.

Additionally, if you are a publisher or an author in the industry, stay tuned on our website and our socials for an upcoming post by solicitor, Alyce Evans, about important defamation law considerations to consider when fictional literary works are inspired by real life people!

Photo by Patryk Sikora on Unsplash

DISCLAIMER:

The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.