Defamation is the umbrella legal concept: publishing something about a person or business that harms their reputation. Slander and libel are the old labels for two forms of it, spoken and written, and in Australia those labels no longer change the legal result. Since the uniform defamation laws took effect in 2005, one set of rules covers every form of publication, from a comment in a team meeting to a TikTok video.
This article explains what each term means, the elements a claim actually turns on, the serious harm threshold introduced in 2021, when a business can sue, and the misconceptions that most often create liability for small businesses.
What slander and libel actually mean
Slander is defamation that is spoken. Libel is defamation in a written or recorded form. The distinction comes from English common law, where slander was treated as transient and, in many cases, only actionable if the plaintiff proved special damage, while libel, being permanent, was actionable without it.
Australian law did away with the distinction. Section 7 of the Defamation Act 2005 (NSW) provides that the distinction at general law between slander and libel is abolished, and that publication of defamatory matter of any kind is actionable without proof of special damage. Equivalent provisions appear in the uniform Acts enacted in each state and territory.
The practical effect is straightforward: the medium no longer matters. A voice note, a podcast, a livestream, a group chat message, an email and a written post are all judged by the same rules. What matters is whether defamatory matter was published, not whether it was spoken or written.
For a statement to be defamatory, it must be the kind of matter that would lead ordinary reasonable members of the community to think less of the person concerned, the test confirmed by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460. Accusations of dishonesty, criminal conduct, incompetence in a trade or profession, or unfitness to run a business are the classic examples.
The elements of a defamation claim
Under the uniform laws, a claim rises or falls on a handful of elements. If you are assessing your own exposure, or wondering whether you have a claim, these are the questions to work through.
Was the matter published to someone else?
Publication simply means communication to at least one person other than the person the matter is about. A private message sent to a single recipient counts. So does a comment in a meeting, an email copied to a client, or a post in a members-only group. Each further communication, including sharing or forwarding, can be a separate publication in its own right.
Does it identify the person or business?
A person does not need to be named. Matter is capable of being defamatory if ordinary reasonable recipients could work out who is being referred to, from the name, a description, initials, or context such as a photo or a role.
Does it carry a defamatory meaning?
The imputation, the meaning a reasonable reader or listener would take from the matter, must be one that lowers their reputation: dishonesty, theft, fraud, unsafe or illegal conduct, professional incompetence, or serious misconduct.
Has it caused serious harm?
Since the reforms that took effect on 1 July 2021 in most states and territories, a plaintiff must establish that the publication caused, or is likely to cause, serious harm to their reputation. Section 10A of the Defamation Act 2005 (NSW) makes this a mandatory element, and the judicial officer, not a jury, decides it, including before trial. For an excluded corporation, the harm must amount to serious financial loss.
Not every unpleasant comment meets the bar. This is one reason the reforms act as a filter: courts can dismiss a claim at an early stage if serious harm cannot be shown.
One qualification: Western Australia has not adopted the 2021 amendments, and its Defamation Act 2005 (WA) still operates without the serious harm element. The law is uniform in broad outline but not identical in every detail, which matters when a publication reaches a national audience.
Can a business itself be defamed?
Under section 9 of the Defamation Act 2005 (NSW), a corporation has no cause of action for defamation unless it was an excluded corporation at the time of publication. A corporation is excluded if its objects do not include obtaining financial gain for its members, or if it has fewer than 10 employees and is not an associated entity of another corporation, and it is not a public body. Part-time staff count as fractions of a full-time equivalent.
The result: most trading companies with 10 or more employees cannot sue for defamation, whatever the damage to their brand. Where false statements are made in trade or commerce, other avenues may exist, such as a claim for misleading or deceptive conduct under the Australian Consumer Law.
Two points worth holding onto. First, a small business under the employee threshold, or a not-for-profit, can sue. Second, section 9(5) preserves the position of individuals: directors, founders and key staff associated with a company keep their own cause of action if the same publication defames them personally. In practice, claims about a business are often brought by the people behind it.
A worked example: the review that went both ways
Maya runs a three-person cleaning company in Melbourne. A customer, Tom, pays a $200 deposit for an end-of-lease clean. The job is cancelled because of a diary error, and the refund takes three weeks. Frustrated, Tom posts in a local Facebook group: "Avoid Maya's Clean Co. They took my $200 and never showed. A dishonest business."
Maya replies publicly: "Tom is a liar and a scammer who tried to blackmail us into a free clean."
Run the elements. Published? Yes: both posts reached the group. Identified? Yes: the business and Tom are named. Defamatory meaning? Reasonably yes: each post imputes dishonesty or worse. Serious harm? Maya's company is an excluded corporation, so it must show serious financial loss, and a run of cancelled bookings would evidence that. Tom must show serious harm to his reputation as a consumer, which is harder for a single post but not impossible.
Then the defences. Tom relies on truth: he must prove that the imputation the company dishonestly took his money is substantially true. A diary error followed by a slow refund is not the same as dishonesty, so his case is weak. Maya relies on honest opinion: the defence requires the statement to be recognisably an opinion, on a matter of public interest, and based on proper material. "Liar and scammer" reads as a statement of fact, not opinion, and the material she relies on is contested.
The realistic outcome is that both sides are exposed. The statutory machinery exists to resolve it: Tom must give Maya a concerns notice before he can sue, and Maya has 28 days to respond with an offer to make amends. A calm, factual exchange or a published correction usually costs far less than a claim.
Common misconceptions about slander, libel and defamation
Misconceptions about slander, libel and defamation are common, and several of them create real legal exposure. The most frequent are:
- Slander and libel are different legal claims with different rules: They are historical labels. Section 7 abolished the distinction, so the same rules apply to spoken and written matter.
- "It's just my opinion" is a complete defence: The honest opinion defence under section 31 of the Defamation Act 2005 (NSW) requires more: the statement must be recognisably an opinion, relate to a matter of public interest, and be based on proper material. "He's a crook" reads as fact. "I was unhappy because the invoice was never explained" reads as opinion.
- A private chat is safe: Publication to a single other person is enough. Group chats, private messages and meetings all count, and they can be screenshotted or forwarded.
- Corporations can sue like anyone else: Only excluded corporations can bring a claim. Larger companies must rely on the individuals behind them or on other causes of action.
- If it is true, it is not defamation: Truth is a defence, but you must be able to prove the defamatory imputations are substantially true. Asserting truth from a keyboard is different from proving it in proceedings, and the dispute itself still costs time and money.
Where a defamation lawyer actually helps
Defamation disputes move quickly, and most small business exposure is created in the first hour after a bad review or a heated exchange. A lawyer's role starts with assessment: whether the elements are made out, whether serious harm can be shown, whether a defence such as justification or honest opinion is realistically available, and who can sue, the company or the individuals behind it.
Since the 2021 reforms in most jurisdictions, there is also a procedural gate. Under sections 12A and 12B of the Defamation Act 2005 (NSW), proceedings cannot be commenced until the aggrieved person gives the publisher a concerns notice identifying the matter, the imputations complained of, and the harm suffered. The publisher then has 28 days to respond with an offer to make amends. Getting this step right matters: a defective concerns notice can delay or derail a claim, and a well-drafted response can resolve the matter with a correction or an apology.
A lawyer also puts numbers on the dispute. Damages for non-economic loss are capped by statute at a maximum amount, originally $250,000 and indexed annually, reserved for the most serious cases, with aggravated damages available separately. Knowing the realistic range changes the decision about whether to sue, defend, or settle.
Finally, an adviser keeps the response proportionate. The goal in most small business defamation matters is not a courtroom win; it is protecting the relationship, the brand, and the time of the people involved.
Before you post, ask four questions
Most defamation disputes that reach a lawyer start the same way: a post or a reply written in the minutes after an upsetting event. Before you publish anything about another person or business, run the four questions from this article. Was it communicated to someone other than the subject? Would a reasonable person work out who is meant? Would ordinary members of the community think less of them because of it? And can you prove the substance of what you are saying?
The first three are about exposure. The fourth is the one that separates a defensible statement from a costly one, because truth and honest opinion are defences you have to prove, not labels you get to apply. If you cannot answer the fourth question with evidence, and the statement could do real reputational harm, that is the point at which a short conversation with a defamation lawyer is cheaper than the alternative.