Defamation claims in Australia have changed in recent years. A person who believes they have been defamed now faces new steps before they can sue. The threshold for a claim is also higher than it once was. Anyone thinking about a claim, or facing one, should understand these rules early.
This article sets out the main features of the current law. It covers concerns notices, the serious harm element, time limits and the main defences. It draws on the Judicial Commission of NSW Civil Trials Bench Book. The law differs between states and territories, so treat this as a general guide only.
How defamation law works in Australia
Each state and territory has its own Defamation Act. The Judicial Commission of NSW bench book on defamation describes these Acts as substantially uniform. In New South Wales the relevant law is the Defamation Act 2005. Reforms made by the Defamation Amendment Act 2020 (NSW) commenced on 1 July 2021.
The bench book says the same reforms were also made in Victoria, South Australia, Queensland, Tasmania and the ACT. Tasmania’s changes started later, on 12 November 2021. The Northern Territory brought in its version on 11 August 2025, according to the Northern Territory Attorney-General’s Department. The bench book says Western Australia has not yet enacted the reforms, so the rules can depend on where and when something was published. A lawyer can confirm which version of the law applies to your matter.
The elements of a defamation claim
A person bringing a claim must prove several things. The material must have been published to someone other than the person defamed. It must identify them and carry a defamatory meaning. Since the reforms, the person must also show serious harm to their reputation.
The serious harm element
Section 10A of the NSW Act introduced the serious harm element. The bench book explains that it is now part of the cause of action. The court, not a jury, decides whether serious harm is made out. Damage is also no longer presumed simply because publication has been proved.
This change was meant to filter out minor claims. A hurtful comment seen by a few people may not reach the threshold. Evidence of real effects on reputation is often needed. Lost work, damaged relationships and wide circulation can all be relevant.
Concerns notices
Before suing, a person must serve a concerns notice on the likely defendant. Section 12B of the NSW Act makes this a requirement. The bench book describes it as a substantive requirement, not just a procedural step. Proceedings started without a valid notice may be struck out.
Section 12A sets out what the notice must contain. This includes the imputations relied on and particulars of the serious harm. Generally, proceedings cannot start until 28 days after the notice is served, unless the court gives leave. More time can apply if the publisher asks for further particulars.
The notice also opens the door to an early resolution. A publisher who receives one can make an offer to make amends under Part 3 of the Act. The process has its own steps and timing rules. If a reasonable offer is refused, it can later help the publisher’s defence.
Time limits for defamation claims
Time limits in defamation are short. In New South Wales the Limitation Act 1969 sets a period of one year from the date of publication. The court may extend this by up to three years where it is just and reasonable. Waiting to see if a problem goes away can therefore be risky.
A single publication rule also applies. Later publications of substantially the same material by the same publisher are generally treated as running from the first. This matters for online content that stays up for a long time. Other states and territories have their own limitation laws, so check the rules that apply.
Defences to defamation
A publisher may rely on a range of defences. The bench book lists them by section number under the NSW Act. Each one has its own requirements, and the details matter a great deal.
- justification, where the imputations are substantially true
- contextual truth
- absolute privilege
- qualified privilege
- publication about an issue of public interest under section 29A
- honest opinion
- innocent dissemination
The public interest defence in section 29A sits alongside the older defences. Which defence fits will depend on the facts. Businesses also face defamation risk through reviews and online posts. Firms that publish regular content to attract clients, as our SEO tips for law firms suggest, should check what they post about others before it goes live.
Who can and cannot sue
Not everyone can bring a defamation claim. Section 9 of the NSW Act restricts certain corporations from suing. Section 10 stops claims being brought on behalf of people who have died. Business owners should keep this in mind when deciding how to respond to criticism.
Disputes between businesses often involve contracts as much as reputation. A clear agreement can reduce the chance of public fallout later. Our post on non circumvention clauses in commercial contracts looks at one way to protect a business relationship. New operators may also find our guide to legal documents for new landscaping companies useful.
Juries and damages
In New South Wales either party can elect for a jury under section 21. The jury decides whether defamatory material was published and whether a defence is made out. The judge then decides damages. The bench book notes a jury normally has four members, and the Federal Court presumes a trial by judge alone.
Damages for non economic loss are capped under section 35. The cap began at $250,000 on 1 January 2006 and is adjusted each year on 1 July. For publications after 1 July 2021 it operates as a hard cap, reserved for the most serious cases. Exemplary damages are not available under section 37.
Defamation can also arise in professional settings, including health care. Patients sometimes post about treatment outcomes, which can lead to disputes. Our article on the legal implications of laser eye surgery looks at related legal issues for patients and clinics.
Frequently asked questions
What is a concerns notice?
It is a written notice a person must serve on a publisher before suing. It sets out the imputations and the serious harm claimed. Proceedings generally cannot start until 28 days after service.
How long do I have to start a defamation claim?
In New South Wales it is generally one year from publication. The court can extend this by up to three years in some cases. Other states and territories have their own limitation laws.
Does every insult count as defamation?
No. The person must show serious harm to their reputation. Minor or trivial publications may not meet this test. A publisher may also have a defence such as honest opinion.
Can a company sue for defamation?
Only some can. Section 9 of the NSW Act restricts certain corporations from bringing claims. A lawyer can check whether a particular business is able to sue.
This article is general information only and is not legal advice. Defamation laws differ between states and territories and they change over time. Please speak with a qualified lawyer about your own situation before taking any step.
