The Law of Defamation

The law of defamation is concerned with the harm done to a person’s reputation
after material has been published, orally or in writing, in any forum (including social media), where the material published is untrue or substantially untrue.

In some states and territories in Australia, there is a requirement that the harm
sustained, or likely to be sustained to a plaintiff’s reputation, is serious.

To succeed in a defamation claim, the following requirements are mandatory:

  • material has been published (either orally or in writing) to at least ONE other party, and
  • the complainant has been identified, either directly or indirectly, in the published material, and
  • an ordinary person would regard the publication of the material as defamatory, and
  • the publication has caused, or is likely to cause, serious harm to a complainant’s reputation (effective 1 July 2021).

Case Study: The cost of a Facebook Post

A Sydney man was awarded $35,000 in damages for a single defamatory Facebook post that claimed that he intimidated, bullied, and threatened women.  It was also alleged that he found people’s addresses and hand delivered mail to their homes. The court found the defendant’s posts were defamatory, and that the man’s reputation had been damaged.

While the audience of the post was relatively small, the court awarded slight aggravated damages for subsequent defamatory posts, thereby increasing the amount of damages awarded to the man.

It is important to be cautious when using social media platforms, and to seek legal advice promptly if an issue of defamation arises.

Eligibility for a defamation claim.

Time Limit for a defamation claim.

In NSW, the limitation period is ONE year from the date that the defamatory material was published. (See Limitation Act 1969). 

However, the court can make exceptions for the limitation period under reasonable circumstances.

Defending a defamation claim

An accusation of defamation can be extremely intimidating, especially when a ‘notice of concern’ has been issued by a Solicitor, outlining the elements of the offence.

Defences to defamation exist to facilitate free speech, as the law recognises that it is sometimes in the public interest to publish certain material. 

The statutory defences are provided below:


Remedies in defamation law are governed by the principle of bearing ‘a rational relationship to harm’ suffered. (see s 34 of the Defamation Act 2005). Harm suffered generally falls into two categories: economic and non-economic.

An injunction may also be an appropriate remedy.

Exemplary or punitive damages are not available in a defamation suit. However, a successful plaintiff may make an application for an award of costs, in bringing a claim to court.

Alternative Dispute Resolution

It is important to note that court is not the only path to resolving a defamation dispute. Once a concerns notice has been issued to a publisher of defamatory material, the publisher has 28 days to respond to make amends. 

Section 15 of the Defamation Act (2005) lists the mandatory requirements of an offer to make amends.

How we can help

We can assist you in:

  • reviewing the material alleged to be defamatory,
  • preparing a concern notice on behalf of a plaintiff,
  • responding to a concern notice on behalf of a defendant,
  • settlement negotiation, and
  • representation in court.

Let us help. Get in Touch.

Appointments can be conducted via:

  • zoom,
  • phone or
  • face-to-face at our office.

World Square
Level 45, 680 George Street,
P: (02) 9145 1262 or 0407 122 230
By appointment only

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