Defamation is the legal wrong committed when someone publishes matter about you that damages your reputation. In Australia it is governed by mirror legislation in every state and territory, with the Defamation Act 2005 (NSW) as the New South Wales version. The law exists because reputation has real value: for a business, a damaging statement can cost customers, contracts and credit in a way a court judgment can only partly repair.
This article walks through how a defamation claim actually operates: who is involved, what must be proved, the compulsory step before any court proceedings, the time limits, the defences a publisher can run, and what a successful claim can recover. Most of it becomes relevant only when you discover that something damaging has been said about you or your business, whether in an online review, a social media post, a news article, or a remark at an industry event.
Who is involved in a defamation claim
A defamation claim involves four main actors:
- The aggrieved person (the plaintiff): the individual or organisation whose reputation is said to have been harmed. They carry the burden of proving the elements of the claim.
- The publisher (the defendant): the person or organisation responsible for communicating the matter. In the digital world that includes the person who posted it, and, once a court has ruled, potentially the platform that hosts it.
- The court: decides whether the claim is made out and what remedies follow. A judicial officer, not a jury, determines whether the serious harm element is established, and may do so before trial.
- Digital intermediaries: platforms such as social media networks or review sites can be ordered to block access to defamatory material, even when they are not parties to the proceedings.
There is one restriction on who can be a plaintiff that surprises many business owners. Under s 9 of the Defamation Act 2005 (NSW), a corporation has no cause of action for defamation unless it is an "excluded corporation": a not-for-profit, or a company with fewer than 10 employees that is not an associated entity of another corporation. A business with 10 or more employees therefore cannot sue in its own name, although the individuals behind it can sue for statements about them personally, even where the same matter also defames the company.
What must be proved
A claim succeeds only if the plaintiff establishes each of the following elements.
A defamatory imputation
The matter must carry an imputation that would lower the plaintiff in the estimation of ordinary, reasonable members of the community. The words do not need to name the person: it is enough that reasonable people would understand the matter to refer to them.
Publication to a third party
The matter must be communicated to at least one person other than the person defamed. A statement made only to the person themselves is not defamation, because nothing has been published to anyone whose opinion of them could be affected. A single recipient is enough.
Serious harm to reputation
Since the 2021 reforms, the serious harm element in s 10A requires the publication to have caused, or be likely to cause, serious harm to the plaintiff's reputation. Trivial or fleeting harm is not enough. For an excluded corporation, the harm must amount to serious financial loss. A judicial officer decides this issue and can dismiss proceedings before trial if satisfied it is not established.
Two things that are commonly misunderstood: the plaintiff does not have to prove the statement is false, and there is no special hurdle for spoken words. Falsity is a matter for the publisher, who must prove the truth of the imputations as a defence. And the old common law distinction between libel (written) and slander (spoken) has been abolished by s 7, so the same test applies to a comment at a trade show as to a published article.
The compulsory first step: a concerns notice
Before any defamation proceedings can be commenced, the plaintiff must give the publisher a concerns notice. Under s 12A of the Defamation Act 2005 (NSW) the notice must be in writing, specify where the matter can be accessed, set out the defamatory imputations the plaintiff says the matter carries, and describe the harm claimed. A copy of the material should be attached if practicable.
This is not a formality. Section 12B prevents proceedings from being commenced unless the notice has been given, the imputations to be relied on were particularised in it, and the period for an offer to make amends has elapsed. The imputations you put in the notice are effectively the imputations you can sue on later.
Once the notice is given, the publisher has a window to respond. Under s 14 an offer to make amends may be made within 28 days of receiving the notice. An offer can involve a correction, an apology, compensation, or a combination of these. If the publisher makes a reasonable offer within time and the plaintiff rejects it, s 18 gives the publisher a complete defence. Many disputes end here: a well-drafted notice followed by a sensible amends offer produces a correction and an apology without anyone seeing a courtroom.
The one-year clock
The single most common way a claim is lost is by missing the time limit. Under s 14B of the Limitation Act 1969 (NSW), an action for defamation must be brought within one year running from the date of publication of the matter complained of. For online material, the clock starts when the matter was first uploaded, not when you happened to see it.
The legislation does allow one extension that rewards acting promptly. If a concerns notice is given within 56 days before the limitation period expires, the period is extended by 56 days minus the number of days remaining. A notice given seven days before expiry, for example, extends the period by a further 50 days.
There is also a single publication rule in s 14C of the Limitation Act 1969 (NSW). A later publication of substantially the same matter by the same publisher is treated as accruing on the date of the first publication, so the clock does not restart every time the material is reposted or shared, unless the later publication is in a materially different manner. This cuts both ways: it stops a plaintiff from suing years after the fact, but it also means a defendant who quietly re-shares old material does not necessarily breathe new life into the claim.
If it goes to court: the defences
If the dispute is not resolved through the amends process, the publisher can defend the claim on any of the grounds in Part 4 of the Act. The main ones are:
- Justification: the defamatory imputations are substantially true (s 25).
- Contextual truth: the matter also carried other imputations that are substantially true, and the complained-of imputations do not further harm the plaintiff's reputation because of that (s 26).
- Absolute privilege: the matter was published in the course of parliamentary or court proceedings, where the need for free speech is absolute (s 27).
- Public interest: the matter concerned an issue of public interest and the publisher reasonably believed publication was in the public interest (s 29A).
- Qualified privilege: the recipient had an interest in receiving the information and the publisher's conduct in publishing it was reasonable (s 30).
- Honest opinion: the matter was an expression of opinion rather than a statement of fact, related to a matter of public interest, and was based on proper material (s 31).
- Reasonable offer of amends refused: the publisher made a timely and reasonable offer that the plaintiff did not accept (s 18).
The honest opinion defence is the one most relevant to negative reviews and commentary. A scathing but genuine opinion based on disclosed facts, such as a customer's account of their own experience, is generally defensible. A statement dressed up as opinion but relying on undisclosed facts is not.
What a successful claim can recover
The remedies available are narrower than many people assume.
Damages for non-economic loss, the compensation for harm to reputation itself, are capped. Section 35 of the Defamation Act 2005 (NSW) sets the base maximum at $250,000, indexed annually, and reserves the maximum amount for the most serious cases. The indexed maximum for the 2024-25 financial year was $478,500, with the figure redeclared each 1 July. Aggravated damages can be awarded on top of the capped amount where the publisher's conduct warrants it, and must be awarded separately.
Two limits on damages are worth noting. Exemplary or punitive damages, designed to punish a defendant, cannot be awarded for defamation in Australia (s 37). And s 34 requires damages to bear an appropriate and rational relationship to the harm actually sustained, so a court will not award a windfall for a modest imputation.
Beyond money, the courts can restrain further harm. A court can grant an injunction preventing the defendant from continuing to publish or republishing the matter, and under s 39A it can order a digital intermediary that is not a party to the proceedings to take steps to block or limit access to the material. That provision is the practical tool for getting a defamatory post taken down. If the publisher has already apologised or published a correction, that is admissible in mitigation of damages under s 38.
Where claims commonly go wrong
The pitfalls tend to be procedural rather than factual:
- Missing the one-year deadline: The clock runs from publication, and for online matter from the day it was first uploaded. Many people assume time starts when they discover the material.
- Failing to preserve evidence: If the post is deleted, the URL, screenshots, dates, and details of who saw it become critical. Capture them before contacting anyone.
- Particularising the wrong imputations: Because the imputations in the concerns notice are the ones you can rely on in court, a notice that identifies the wrong imputations can leave a strong case unable to proceed.
- Rejecting a reasonable amends offer: An offer that is reasonable in the circumstances, including a proportionate correction and apology, hands the publisher a complete defence if you turn it down.
- Assuming the company can sue: A corporation with 10 or more employees cannot bring a defamation claim, so the individuals must sue in their own names, if they can.
- Suing over trivial harm: The serious harm element filters out claims where the reputational impact is minor, and a court can dismiss those claims before trial.
When to get a lawyer involved
The concerns notice is the pivotal document in the whole scheme, and it is where a defamation lawyer earns their fee. A lawyer can assess whether the matter carries defamatory imputations and whether the harm is serious enough to clear the s 10A threshold, draft a concerns notice that particularises the right imputations, and monitor the limitation date so the one-year clock never silently expires. If the publisher responds with an offer to make amends, a lawyer can advise whether it is reasonable, which matters because a refusal can become a defence. If the matter proceeds, they will manage the evidence of harm, respond to the defences, and argue the damages questions. Engaging a lawyer early is usually far cheaper than rescuing a claim after the deadline has passed or the imputations have been locked in incorrectly.
The decision that shapes everything
If there is one decision that determines how a defamation matter ends, it is what you put in the concerns notice and when you give it. Give it too late and the one-year clock may have already run. Give it without properly particularising the imputations and you have narrowed your own claim. Give it promptly and correctly, and you unlock the amends process that can resolve the dispute with a correction and an apology, while preserving your position through the extension in s 14B of the Limitation Act 1969 (NSW). The practical rule for any business that discovers defamatory material about it is simple: preserve the evidence, work out who published it, and get the concerns notice drafted before the clock becomes the enemy.