Overview
Defamation law in Australia is undergoing an important shift. In Western Australia, the Defamation Act 2005 (WA) still applies the traditional “triviality” defence, meaning a claim may fail if the publication is considered too minor to justify legal action.
However, other jurisdictions—most notably New South Wales—have already introduced a stricter “serious harm” threshold, and similar reforms are expected to be adopted in Western Australia in time.
What is the serious harm test?
The serious harm test raises the threshold for bringing a defamation claim. A plaintiff must prove, on the balance of probabilities, that the publication:
- has caused serious harm to their reputation, or
- is likely to cause seriousharm in the future
This marks a shift away from the older approach, where harm was often assumed once defamatory meaning was established.
How courts assess serious harm
Courts consider the real-world impact of the publication, including:
- the reach and scale of publication
- the nature and seriousness of the allegations
- evidence of reputational impact (including public or client reaction)
- any financial or commercial consequences
- online metrics such as views, shares, and circulation
Importantly, the focus is on actual or likely impact, not just the wording of the statement.
Practical implications for clients
For clients considering defamation proceedings, the key takeaway is that stronger evidence is now required at an earlier stage.
It is no longer enough to show that false or damaging statements were published. Clients must be able to demonstrate:
- real reputational impact, or
- a strong likelihood of such harm occurring
This often requires early collection of evidence such as customer reactions, financial records, and publication data.
Key takeaway
The introduction of the serious harm threshold reflects a broader policy shift in defamation law. It is designed to ensure that only claims involving meaningful reputational damage proceed to court, reducing litigation over minor or technical complaints.