Defamation Law in Sydney

Jameson Law | Defamation Lawyers in NSW — Call (02) 8806 0866 or book a consultation.

What is defamation?

• Defamation law protects against unjustified damage to reputation.
• It covers statements that would lead an ordinary reasonable person to think less of the person concerned.
• Community standards shift over time, so what is defamatory can change.

For background on how NSW law defines and structures defamation claims, see the Defamation Act 2005 (NSW) and the NSW Judicial Commission’s civil bench book overview of defamation principles.

Elements of Defamation

The complainant (plaintiff) must show:

• The communication was published by the defendant to at least one other person.
• The communication identifies or is about the plaintiff.
• The communication carries a defamatory meaning.
• Serious harm: since 1 July 2021, NSW requires proof that the publication caused, or is likely to cause, serious harm to reputation under s 10A Defamation Act.

Venue and time limits

Proceedings are usually brought in the court most closely connected to the harm. For online material, the place of publication is where the content is downloaded or read, as confirmed by the High Court in Dow Jones v Gutnick.

Time limits

• 12 months from first publication: see Limitation Act 1969 (NSW) s 14B.
• A “single publication rule” applies to online material for publications after the reforms: see s 14C Limitation Act.

Vulgar abuse

• Context matters. Language that may be brushed off as mere abuse in one setting can be defamatory in another. See the discussion in Bennette v Cohen about calling someone a “bully” or “thug” at a public meeting.

Element 1: defamatory meaning

This is met where the words are likely to harm the plaintiff’s reputation, cause others to shun them, or lower them in the estimation of right-thinking members of the community.

Element 2: communicated

“Publication” simply means communication in any form — print, online, audio or visual.

Element 3: identification

The plaintiff must be identifiable to an ordinary reasonable reader or viewer. They do not need to be named expressly. Identification can be by context, description or inference.

Groups

• Statements about large groups generally do not identify an individual. Smaller defined groups may create identification risk.

Other barriers

• Companies with 10 or more employees generally cannot sue for defamation in NSW, though other causes of action may be available. See s 9 Defamation Act.
• Deceased persons cannot be defamed. See s 10.

Cassidy v Daily Mirror Newspapers and Lee v Wilson

These cases show how identification can be made without naming the person, where readers who know the plaintiff can connect the dots.

Cause of action and abolition of slander/libel distinction

NSW defamation is actionable without proving special damage and the old distinction between slander and libel has been abolished. See s 7 Defamation Act.

Defences

• Justification (truth): s 25.
• Contextual truth: s 26.
• Absolute privilege (parliamentary or court proceedings): s 27.
• Publication of public documents: s 28.
• Fair report of proceedings of public concern: s 29.
• Public interest defence (introduced 2021): s 29A.
• Qualified privilege: s 30.
• Honest opinion: s 31.
• Innocent dissemination (subordinate distributors, platforms and carriers): s 32.

Note: the former triviality defence under s 33 has been repealed in NSW. The serious harm threshold now filters minor claims. See the Law Society Journal’s summary of the reform to s 10A serious harm.

Offers to make amends and concerns notices

Early resolution is encouraged. A concerns notice is generally required before suing, and defendants can make an offer to make amends. See s 12A and Part 3 Defamation Act. Practical guidance is available from LawAccess NSW.

Remedies

Injunctions

Injunctions are exceptional because courts prefer not to restrain speech. They may be granted where there is a clear risk of ongoing harm.

Damages

• Damages must bear a rational relationship to harm: s 34.
• The maximum amount for non-economic loss is indexed annually. As at 1 July 2024, the NSW maximum was $478,500 (updated each year): see NFP Law summary and s 35.
• Aggravated damages can exceed the cap in appropriate cases: s 35(2).
• Exemplary or punitive damages are not available: s 37.
• Apologies and corrections can mitigate damages: s 38.

Online removal and platform reporting

For internet defamation issues, you can also use platform tools to limit harm while legal issues are assessed:

• Google removal requests: support.google.com/legal
• YouTube defamation policy: support.google.com/youtube
• Facebook reporting hub: facebook.com/help
• Instagram reporting: help.instagram.com
• X (Twitter) reporting: help.twitter.com
• LinkedIn reporting: linkedin.com/help
• eSafety Commissioner guidance: esafety.gov.au/report
• ACMA complaints (broadcast and online): acma.gov.au/make-complaint

Need help?

If you have received a concerns notice, need to send one, or want practical defamation advice tailored to Sydney and NSW, contact Jameson Law, call (02) 8806 0866 or reach us via our contact page. You can also explore our legal resources and court representation pages for related information.

Further reading: NSW Government’s consolidated legislation portal, the Federal Court site for judgments, and the Services Australia portal for secure ID and document access if needed for evidence.