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  • From 1 July 2021, New South Wales defamation law has had a new ‘serious harm’ test.
  • That test has been part of the UK’s defamation law since 2013.
  • UK cases could be instructive as to how courts in NSW will determine this test.

From 1 July 2021 the Defamation Amendment Act 2020 (Amendment Act) brought into force several changes to NSW’s Defamation Act 2005. The introduction of the serious harm test in s 10A is particularly noteworthy not least because it changes the elements of the cause of action.

Section 10A(1) limits the right to sue for defamation only to cases where the publication of defamatory matter ‘has caused, or is likely to cause, serious harm to the reputation of the person.’ Similarly, a corporation that can sue (an excluded corporation) can only do so if the publication of defamatory matter ‘has caused, or is likely to cause, the corporation serious financial loss’ (s 10A(2)).

Section 10A(3) stipulates that serious harm is to be determined by the judicial officer and ss (4) allows a judicial officer on their own motion to decide when to determine the question of serious harm, even before the trial. This gives judicial officers the power to initiate the application to determine serious harm, even if neither party consents. There is much in s 10A that warrants further analysis. However, the purpose of this article is to briefly examine significant UK judicial treatment of the serious harm test. This is because the Explanatory Note to the Amendment Act specifically referenced the UK’s serious harm test, it referred to the NSW amendment as being consistent ‘with the approach taken in the UK Defamation Act’ (p 4), and the operative parts of s 10A(1) and the UK section are identical.

You can thank the Brits for that

In the UK, the serious harm test was a response to cases that began applying a ‘seriousness threshold’. For example, Jameel v Dow Jones [2005] EWCA Civ 75 found that to ensure a libel action was serving a legitimate purpose, claimants needed to prove some measure of harm to reputation before entertaining a libel suit (see e.g. [55] and [70]). Importantly, in Thornton v Telegraph Media Group [2010] EWHC 1414 (QB) (‘Thornton’), Tugendhat J held that the tests of defamatory meaning incorporated a ‘threshold of seriousness’ which is determined by considering whether the publication substantially affects in an adverse manner the attitude of other people towards the claimant or has a tendency to do so (see [89] and [95]).

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