How harmful are your words?

On 16 June 2023, I appeared before the ACT Supreme Court (instructed by my colleague Phoebe Logan) in relation to an application to determine whether a Plaintiff had suffered serious harm in defamation proceedings commenced against my client.

On 1 September 2023, His Honour Acting Justice Crowe handed down his decision (the Decision) and dismissed the Plaintiff’s claim in its entirety, in accordance with the orders sought by my client. The Decision is known as Supaphien v Chaiyabarn [2023] ACTSC 240 and is the first in the Australian Capital Territory to determine whether a claim ought to be struck out at an early stage on this basis.

If you’re still with me at this point – let’s unpack what the Decision means for defamation claims generally, and what the threshold of “serious harm” is.

Many of you will have heard of defamation from high-profile cases such as Depp v Heard, Geoffrey Rush and Ben Roberts-Smith. At its core, defamation is concerned with injury to a person’s reputation without good reason or justification. The idea is that a person’s reputation is valuable and important and can be harmed in the same way as a person can be harmed physically (although injury to reputation is intangible).

Defamation law has a very long history, with compensation for “loss of reputation” being recognised as early as the seventeenth century. Defamation law has changed significantly over the years and is now governed by uniform legislation across all jurisdictions in Australia. In the ACT, claims for defamation are dealt with in Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act).

Briefly, and following the recent introduction of a “serious harm” threshold, a claim for defamation requires the following:

A publication (which can include spoken words) by a defendant to a third person or third parties (the Publication);
The Publication identifies the Plaintiff;
The information had defamatory imputations (or a defamatory meaning) about the Plaintiff; and
As a result of the Publication of defamatory imputations, the Plaintiff has suffered serious harm.

The fourth element outlined above was introduced to the uniform defamation legislation in Australia as part of a series of reforms intended to encourage parties to seek alternative ways to resolve claims where damages are likely to be modest and out of proportion to the legal costs of proceedings, with regard to the significant cost and stress of defending a defamation claim, which can be prohibitive for most individuals.

Since its introduction, which can be found at section 122A of the Act in the ACT, a claim for defamation must meet a threshold of seriousness in order for a claim to succeed.

The idea behind it is to exclude what the Court may describe as “trivial” or “backyard” claims, which often result in all parties spending more money than the claim is worth. As much as I am sure many people would love to sue their mates for hurting their feelings, the introduction of the serious harm threshold is designed to keep those disputes in the backyards, and out of our courtrooms.

Section 122A of the Act contains a mechanism which allows a defendant to ask the Court to determine the issue of serious harm prior to a final hearing (before the parties get deep in litigation and legal fees), and if a party makes such an application the Court must determine it prior to a final hearing unless there are special circumstances which justify delaying that determination.

So, what is serious harm? Well – the introduction of the threshold is relatively recent, and our case has shed some light on what that term means. In essence, serious harm involves harm that is more than substantial, but it need not be “grave”.

It is confined to reputation – so, even if a person’s feelings are seriously hurt, that does not mean that their reputation has suffered serious harm. The Court will look at the actual or likely reputational damage, that is, the impact of the imputation, arising from a combination of the tendency of the words and their actual impact on those to whom they were communicated. What is relevant is the meaning of the words, the extent of the publication, the nature of the recipients and their relationship with the plaintiff, and whether the people to whom the publication was published actually believe those imputations.

You could have a “grave” imputation (or defamatory meaning) that might not result in serious harm to reputation. For example, a defamatory publication might be published to a small number of persons who are well acquainted with a plaintiff and are not disposed to believe the imputations that have been published. Say a stranger passing you and your friends on the street and says something gravely defamatory about you – that is unlikely to cause serious harm to your reputation because your friends are acquainted with you and would be unlikely to believe that stranger (at least I hope that is the case for you).

Our case concerned a publication of a video in a group on Facebook, which the Plaintiff alleged contained defamatory imputations. It was our view that the Plaintiff’s claim did not meet the relevant threshold of seriousness and that it ought to be dismissed at an early stage, to avoid the need for the parties to incur the cost of litigation.

Ultimately, His Honour Crowe AJ agreed, and dismissed the Plaintiff’s claim with costs, finding that she had failed to establish that the publications in question had caused her serious harm beyond hurt to feelings.

Whilst the Decision is a great result for our client, it is a timely reminder that to succeed in a claim for defamation, your claim must meet a threshold of seriousness, and your evidence must support serious harm to your reputation. It is vital to obtain advice in relation to your claim as early as possible – there are strict timeframes for a claim in defamation, and it can be a complex area of law. At Aulich, whether you are a plaintiff or a defendant, we are here to help you – get in touch with us on (02) 6279 4222.

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How harmful are your words?