On a Tuesday morning, Marco, who runs a bathroom renovation business in Western Sydney, opens his phone and finds a one-star review and a Facebook post calling his company a scam. The post claims his business took $4,000 from a customer and never did the work. Three people have shared it, a supplier has seen it, and a client has emailed asking whether the company is in trouble. None of it is true.
What is actually at stake
Defamation is a civil wrong, and in Australia it is governed by the uniform Defamation Act 2005 (NSW), which applies in the other states and territories in substantially the same form. To sue, a person must show the statement was published to at least one other person, that it identified them, and that it lowered their reputation in the eyes of ordinary reasonable members of the community, as the High Court confirmed in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16. Since the model defamation reforms that commenced in July 2021 in most states and territories, a plaintiff must also show the publication has caused, or is likely to cause, serious harm to reputation: s 10A of the Defamation Act 2005 (NSW).
Two things decide whether Marco has a real problem or a manageable one. The first is time. A defamation claim must be brought within one year of publication under s 14B of the Limitation Act 1969 (NSW), and posts that spread quickly also disappear quickly, taking their evidence with them. The second is the way he responds. A hasty public reply can amplify the allegation, expose private information, and create fresh legal exposure of its own. The choices made in the first 48 hours usually determine whether this becomes a blip or a six-figure problem. The reach of the post matters too: a statement in a private group with a dozen members is a different problem to one shared publicly a hundred times, and the realistic remedy changes accordingly.
Five steps to work through now
1. Preserve the evidence before it disappears
The most valuable thing you can do in the first hour is not reply. It is to capture the publication while it still exists, in a form a court or a platform will accept.
- Screenshots showing the URL, the username, the date and time, and the surrounding comments.
- A screen recording scrolling through the page, or a saved copy of the page itself, so the context is preserved if the post is edited or deleted.
- Copies of the email, message, or letter if the statement was sent directly.
- Records of the commercial damage: cancelled bookings, refund demands, lost quotes, or clients who mention the post.
Note the date the statement first appeared. For online matter, the limitation clock runs from the day it was first uploaded, not from the day you saw it, so a statement that has been up for months may already be time-barred. Keep the originals untouched. A cropped screenshot with no timestamp is far weaker than the full record.
Also note who has seen or shared the post, and keep a running record if it continues to spread. The audience matters twice over: it helps demonstrate how much harm the publication has caused, and it tells you whether a quiet takedown or a public correction will actually reach the people who saw the original statement.
2. Assess whether the statement is actually defamatory
Not every bad review is defamatory, and it is worth being clear-eyed about the difference before you spend money or goodwill on it.
- A statement crosses the line when it is published to someone other than the business, identifies the business directly or indirectly, and would make ordinary reasonable people think less of it. That is the test the High Court applied in Radio 2UE Sydney Pty Ltd v Chesterton.
- Claims like "they stole my money", "this business is a scam", "they forged documents", or suggestions that the business is unlicensed, unsafe, or breaking the law, presented as fact, are the kinds of statements that raise real red flags when they are false.
- Taste and service complaints usually do not. "Rude staff" or "slow delivery" is a gripe, not a defamation claim, unless it asserts something false and serious.
Calling something an opinion does not automatically protect the speaker. The defence of honest opinion in s 31 of the Defamation Act 2005 (NSW) requires the statement to be an expression of opinion rather than fact, related to a matter of public interest, and based on proper material. A sentence like "I think they're corrupt" can carry an implied assertion of fact. Publishers can also raise other defences, including that the imputations are substantially true (s 25), that the matter concerned an issue of public interest (s 29A), and qualified privilege (s 30). If the statement is true, there is no claim.
Context matters as much as wording. A post that looks mild on its face can be defamatory through what it implies, for example "ask me what really happened with this business" implies undisclosed wrongdoing, and courts read the statement the way an ordinary reasonable reader would, in context. The same words can also be defamatory in one setting and harmless in another: a private complaint to a regulator is not read the same way as a public Facebook post, and defences such as qualified privilege reflect that.
3. Check who can actually sue before you commit to a fight
This is the step most business owners skip, and it can change the whole strategy. In Australia, a company generally has no cause of action for defamation unless it is an excluded corporation: s 9 of the Defamation Act 2005 (NSW).
- An excluded corporation is a not-for-profit, or a business with fewer than 10 employees that is not an associated entity of another corporation. Part-time staff count as a fraction of a full-time equivalent.
- A business that does not qualify cannot sue in its own name, but the individuals the statement identifies can. If a post names the director, or implies the director is personally dishonest, the director may have a claim even where the company does not: s 9(5).
- For an excluded corporation that does sue, the serious harm element is harder to satisfy. Harm to its reputation does not count unless the publication caused, or is likely to cause, serious financial loss: s 10A(2).
The practical upshot is to find out who the statement identifies, count the employees properly, and work out whose claim it is before drafting a single letter. The test is applied at the time of publication, so a business that grows past 10 employees later still keeps its claim for statements published while it was smaller. Count everyone, including part-time staff, because the numbers decide whether the company can sue at all.
4. Manage the public response and request removal
Alongside the legal assessment, there is the damage control. Three levers usually move the situation fastest, and they can run in parallel.
- Platform takedown: most platforms have policies against false statements presented as fact, harassment and impersonation, and publishing private information. A report that names the policy breached and attaches the evidence is the approach platforms respond to, rather than an argument about defamation law.
- Direct removal request: if you know who posted it, a calm letter identifying the statements, explaining why they are false, and asking for removal or correction resolves many disputes, particularly where the post was impulsive.
- Neutral public reply: if you reply at all, acknowledge the concern without conceding the facts, invite the person to contact you privately, and do not disclose customer details, invoices, or staff matters, even if the poster has already done so.
Avoid the public fight. A heated exchange draws more eyes to the allegation, and a reply that asserts false things about the poster can itself be defamatory. If you are tempted to record a phone call with the person involved, check the recording rules for your state first; consent requirements vary, and a recording made unlawfully may be unusable as evidence.
5. Escalate in the order the law requires
If the post stays up and the harm is serious, the pathway is prescribed, and it starts with a notice, not a writ.
- A concerns notice must be given before proceedings can be commenced: ss 12A and 12B of the Defamation Act 2005 (NSW). It must be in writing, specify where the matter can be accessed, set out the defamatory imputations the business relies on, and describe the serious harm, or for an excluded corporation the serious financial loss, suffered. A copy of the matter should be attached if practicable.
- The publisher then has 28 days to make an offer to make amends: s 14. If the offer is reasonable and the business refuses it, that refusal can itself become a defence to the claim: s 18. If the publisher lets the 28 days lapse without any offer, the business is free to commence proceedings, and an offer made after the window closes no longer attracts the protections of the amends scheme.
- Many disputes resolve inside that window: removal, a retraction or correction, an apology, and an undertaking not to republish, often with confidentiality terms so the matter does not resurface.
- Where the publication is ongoing or the damage is severe, a court can grant urgent relief such as an injunction to stop further publication, and damages if the claim succeeds. Watch the one-year clock: a concerns notice given within the last 56 days of the limitation period extends it by up to 56 days under s 14B of the Limitation Act 1969 (NSW).
If a competitor is behind the claims, defamation is not the only route. False market-facing statements can also amount to misleading or deceptive conduct under s 18 of the Australian Consumer Law, which is Schedule 2 of the Competition and Consumer Act 2010 (Cth).
When this becomes a lawyer's job
Some situations are worth handling yourself, and some are not. Get advice before you serve a concerns notice, because the imputations particularised in it define the claim. Get advice before the limitation period bites, and before you post or send anything that could itself be defamatory. The same applies where the publisher is anonymous, where the publication is being repeated, or where the statement goes to criminal conduct.
Here is what we would do if you brought this situation to us. We would review the evidence and the publication history, assess the elements, the available defences, and who has standing to sue, and form a view on whether the serious harm or serious financial loss threshold is realistically provable. If a claim is worth running, we would draft and serve the concerns notice with the imputations carefully particularised, manage the 28-day amends window and the limitation clock, and negotiate a resolution that removes the material, secures a correction or retraction, and protects against republication. If the publisher will not engage, we would take the matter to court, including urgent injunctive relief where the damage is ongoing. We would also be frank about whether running the claim is worth it at all: defamation proceedings are costly, and a letter that secures removal and a retraction is often worth more than a judgment.
Preserve the record before you post the reply
The part of this you will remember tomorrow is the counter-intuitive one: your first move should not be the public one. In defamation, the claim stands or falls on what you can prove, and the screenshot with the URL and timestamp, the cancelled booking, and the email trail are the case. A reply written in anger is the thing most likely to turn a customer dispute into two defamation claims, and it cannot be unsaid. Preserve first, assess second, and reply only when you know whose claim it is and what the law requires.
To recap the essentials: a statement is defamatory when it is published to others, identifies the business, and lowers its reputation, and since the 2021 reforms the harm must be serious. Many companies cannot sue, so check the excluded corporation test and whether individuals have their own claims. Preserve evidence immediately, handle the takedown and public response carefully, and escalate through a concerns notice and the 28-day amends process before court. Early involvement from a defamation lawyer is usually the difference between a managed dispute and a costly one.