The review, the post, or the comment lands and other people have already seen it. A customer, an ex-employee, or an anonymous account has said something false about you or your business, and you can feel the damage in lost enquiries, a cancelled contract, or the silence from people who used to call. You are now weighing whether to sue for defamation, and whether the claim can actually succeed is a far narrower question than whether the statement was unfair.
The options in front of you
There are really three paths. You can do nothing, which lets the material stand and may encourage more of the same. You can respond outside court, by demanding a takedown, a correction, or an apology. Or you can sue, which in Australia means bringing proceedings under the uniform Defamation Act 2005 (NSW), with equivalent legislation in force in every state and territory.
Before weighing those paths, two assumptions need correcting. A business with ten or more employees generally cannot sue for defamation at all. And defamation protects reputation from false statements, so if the statement is substantially true there is no claim, no matter how damaging it is. Once those two filters are cleared, the factors below decide whether a claim is worth bringing.
The factors that decide whether your claim is worth bringing
Can you prove the four elements?
A plaintiff carries the burden of proving each element of the cause of action, and a failure on any one of them ends the claim:
- Defamatory meaning: The matter must carry an imputation that would lower you in the estimation of ordinary reasonable members of the community. Being called difficult is unlikely to qualify; being falsely accused of theft is.
- Identification: The matter must identify you. It does not need to use your name, but an ordinary reader must understand the comments are about you, whether through a nickname, a photo, or other detail.
- Publication: The matter must have been communicated to at least one person other than you. A message sent only to you is not publication, which is why claims usually turn on how widely the material was shared.
- Serious harm: Since the 2021 reforms, s 10A of the Defamation Act 2005 (NSW) makes it an element of the claim that the publication has caused, or is likely to cause, serious harm to your reputation. The judge, not a jury, decides this, and can determine it before trial and dismiss proceedings that fail it.
The serious harm element is the one most people miss. Evidence of real harm, such as lost sales, cancelled contracts, or refused opportunities tied to the publication, is what separates a claim that a court will let run from one that is struck out early.
Where was the material published?
Most defamation now starts online, and that changes who you can sue and how the law applies:
- Who counts as a publisher: In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the High Court held that media companies were publishers of defamatory comments left by third parties on their public Facebook pages, because they invited and encouraged the comments and provided the vehicle for publication. But in Google LLC v Defteros [2022] HCA 27, the Court held that a search engine did not publish defamatory matter merely by returning hyperlinks to it in search results. Whether a share, a repost, or a link makes someone a publisher depends on their participation, so each case turns on its own facts.
- Digital intermediaries: s 31A gives platforms and similar intermediaries a defence if they had an accessible complaints mechanism and, once given a written complaint, took reasonable steps to prevent access to the matter within 7 days. That makes the takedown request a meaningful first step, because it can extinguish liability for ongoing publication.
- Anonymous authors: a pseudonymous account can be hard to trace. Identifying the person behind it may require court orders against the platform, adding time and cost to the claim.
- The single publication rule: for electronic matter, the limitation clock runs from the day the matter was first uploaded, not from each later view or re-access.
Can you or your business bring the claim at all?
Who you are determines whether a claim exists:
- You as an individual: a defamation claim is available to you in the ordinary way.
- Your company with fewer than 10 employees: under s 9, a corporation can sue only if it is an "excluded corporation", which means it has fewer than 10 employees (part-time staff counted as a fraction of a full-time equivalent) and is not an associated entity of another corporation, or its objects do not include financial gain. It must also not be a public body.
- Your company with 10 or more employees: no defamation claim at all, whatever was said. A lawyer can advise whether another avenue, such as injurious falsehood, is open instead, but its elements and remedies differ.
If an excluded corporation does sue, s 10A(2) raises the bar further: harm to its reputation is not serious harm unless the publication caused, or is likely to cause, the corporation serious financial loss. A company claim therefore needs direct evidence connecting the publication to money.
Could the publisher have a defence?
Even a claim with all four elements proven can fail if the publisher establishes a defence. The ones most likely to arise, all in Part 4 Division 2 of the Defamation Act 2005 (NSW), are:
- Truth: s 25, the defence of justification, succeeds if the defamatory imputations are substantially true.
- Honest opinion: s 31, available where the matter was an expression of opinion rather than fact, on a matter of public interest, and based on proper material.
- Absolute privilege: s 27, covering statements in parliamentary proceedings and in the course of court or tribunal proceedings, including evidence given in them.
- Qualified privilege: s 30, where the recipient had an interest in receiving the information and the publisher's conduct was reasonable. Malice defeats it.
- Public interest: s 29A, where the matter concerned an issue of public interest and the publisher reasonably believed publication was in the public interest.
- Public documents and fair report: ss 28 and 29, protecting fair copies of public documents and fair reports of proceedings of public concern.
There is also a defence that comes from the pre-court process itself. Under s 18, if the publisher made a reasonable offer to make amends, including a correction, an apology, and expenses, and you refused it, that refusal is a defence to the claim. A good claim is one where the publisher has no credible defence and no reasonable amends offer on the table.
Are you inside the deadline and the process?
Defamation has a short limitation period and a mandatory pre-court step:
- One year: s 14B of the Limitation Act 1969 (NSW) requires an action to be brought within 1 year running from the date of publication. For electronic matter, that is the day it was first uploaded or sent.
- Concerns notice: s 12B of the Defamation Act 2005 (NSW) prevents you from commencing proceedings until you have given the publisher a concerns notice that particularises the imputations you rely on, and the applicable period for an offer to make amends, generally 28 days, has elapsed.
- The 56-day extension: if the concerns notice is given within 56 days before the limitation period expires, the period is extended by 56 days minus the days remaining. In practice, the sequence is gather evidence, serve the concerns notice, wait out the amends window, and commence proceedings, all inside 12 months of first publication.
What is at stake if you get it wrong?
The downside of a weak claim is not just losing. Under s 40, a court may order costs on an indemnity basis against a party who unreasonably refuses a settlement offer, so pursuing an unmeritorious claim can mean paying a large share of the other side's legal costs. Damages are also capped: s 35 limits non-economic loss damages, with the maximum amount adjusted annually and reserved for the most serious cases, and s 37 rules out exemplary damages. Add the length of proceedings, and a claim that was always going to fail is an expensive way to make a point.
How an Artificer Legal lawyer helps you make the call
The decision to sue should be made with someone who has run defamation matters, because every factor above needs to be tested against your actual evidence. An Artificer Legal practitioner can assess whether the material carries defamatory imputations, whether it identifies you, and whether the serious harm threshold is realistically met, and can be direct about the cases that will not survive. They can identify who the publisher is, including the position of platforms and intermediaries, and the defences the publisher is likely to run. If you proceed, they draft and serve the concerns notice with the imputations properly particularised, advise on any offer to make amends, and model the costs exposure so you know the downside before committing. For businesses that cannot sue for defamation, they can advise on whether another cause of action is available. Because of the one-year clock, the value of early advice is not just strategic, it is often decisive.
Serious harm and the one-year deadline
The question that takes the most effort to get right is serious harm. Since 2021, you must be able to show the publication caused, or is likely to cause, serious harm to your reputation, and a judge can dismiss the claim at an early stage if you cannot. That is why the practical work happens in the first weeks: preserving screenshots, recording who saw the material, and documenting lost business or cancelled opportunities before the 12-month clock runs out.
To bring it together, a strong defamation claim is one where the four elements are provable, the publisher has no credible defence, you are the kind of person or business the law allows to sue, and the claim is commenced within one year after serving a properly particularised concerns notice. Most claims fail on one of those four points, and a lawyer can tell you which one is your risk before you spend money finding out.