In the world of defamation law, one of the most significant recent developments in Victoria and other parts of Australia is the introduction of the “serious harm” element. This requirement fundamentally reshapes how defamation claims are assessed, filtering out trivial or unmeritorious cases at an early stage.

If you are considering a defamation claim, or defending against one, understanding the legal test of serious harm is essential. At Allen Law, we are experts in defamation law in Victoria, and we are here to guide you through what the serious harm threshold means and how it applies to your circumstances.

What Is the Serious Harm Element?

As of 1 July 2021, the law of defamation in Victoria includes an additional statutory hurdle: the plaintiff must prove that the publication of defamatory matter has caused, or is likely to cause, serious harm to their reputation.

This requirement is set out in section 10A of the Defamation Act 2005 (Vic), introduced by the Defamation (Model Provisions) and Other Legislation Amendment Act 2020.

The provision reads:

“It is an element of a cause of action for defamation that the publication of the defamatory matter has caused, or is likely to cause, serious harm to the reputation of the person.”

This legislative reform aligns Victoria with jurisdictions such as New South Wales, Queensland and South Australia, which have also adopted the serious harm threshold.

Purpose of the Serious Harm Test

The serious harm requirement is designed to:

• Prevent minor or trivial claims from proceeding to trial
• Reduce the burden on the courts and defendants
• Ensure that only genuinely damaging defamation claims proceed to court

In doing so, the reform strikes a balance between protecting reputation and ensuring freedom of expression, especially in the digital age, where social media has amplified the spread of casual, often reckless, commentary.

When and How Is Serious Harm Assessed?

The serious harm element can be assessed at various stages of a defamation proceeding, but most commonly it is raised by a defendant early in the litigation, by way of a preliminary determination application.

Courts may decide to deal with the issue as a threshold question—before dealing with any other substantive issues in the claim—through a summary dismissal or interlocutory hearing. If the plaintiff fails to establish serious harm, the claim is dismissed at that stage, sparing both parties the cost and time associated with proceeding to a trial.

This assessment typically considers:

• The content, tone, and reach of the defamatory publication
• The context in which the matter was published
• The audience size and demographic
• Any actual consequences suffered by the plaintiff, such as reputational damage, emotional distress, job loss, or social exclusion

Key Case Law: Serious Harm in Action

Australian courts have begun applying the serious harm test in line with UK precedent, particularly the landmark UK Supreme Court case of Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB). The Lachaux decision confirmed that serious harm is a fact-based inquiry, requiring more than just the publication of defamatory words.

Lachaux has been applied in many Australian cases since the introduction of the serious harm element. See, for example, Whittington v Newman[2024] NSWCA 27.

Evidence Required to Prove Serious Harm

To meet the serious harm threshold, plaintiffs are advised to present tangible and credible evidence, which may include:

• Witness testimony that their opinion of the plaintiff has been lowered
• Loss of business, employment, or professional opportunities
• Social media metrics indicating wide dissemination
• Psychiatric or medical evidence (in some cases)

Generalised claims about damage to reputation will no longer suffice. Plaintiffs must demonstrate actual or likely reputational damage that goes beyond mere embarrassment or hurt to individual feelings.

Serious Harm and Social Media Defamation

A common context for modern defamation claims is social media—platforms such as Facebook, Instagram, Twitter, and messaging apps like WhatsApp. Courts have shown a willingness to consider the reach and permanence of social media posts when determining whether serious harm has occurred.

However, a social media post seen by only a handful of people, with limited engagement, may not meet the threshold—even if the statement is clearly defamatory.

If you’re concerned about online defamation, Allen Law can assist with assessing whether a viable claim exists under the serious harm standard and advise on whether to pursue takedown notices, letters of demand, or formal litigation.

Can Serious Harm Be Presumed?

No. Under the new regime, serious harm is not presumed. Plaintiffs must plead and prove the element. This marks a departure from the earlier position under common law, where defamatory statements were presumed to cause harm unless proven otherwise.

This change enhances the burden on plaintiffs and requires more strategic, evidence-based preparation before commencing court proceedings.

Implications for Defendants

For defendants, the serious harm test presents a powerful early defence tool. If a plaintiff cannot establish serious harm, the defendant can apply for the matter to be dismissed early, saving legal costs and reputational risk.

Defamation defence strategies now often include challenging the serious harm threshold at the outset.

Why Legal Advice Is Essential

Because the serious harm element adds a complex new layer to defamation litigation, it is vital to obtain early, informed legal advice—whether you are pursuing or defending a claim.

At Allen Law, we specialise in defamation claims across Victoria and are highly experienced in navigating the serious harm threshold. We can help you:

• Evaluate the viability of a defamation claim
• Collect and assess the evidence needed to prove (or refute) serious harm
• Represent you in court during preliminary hearings or trials
• Resolve disputes before they escalate through strategic negotiations

Contact Allen Law for Expert Defamation Advice

Whether you’ve been defamed, served with a concerns notice, or are navigating a social media controversy, Allen Law is ready to act swiftly and decisively to protect your legal and reputational interests.

📞 Phone: (03) 7020 6563
📧 Email: lee@allenlawyers.com.au
🌐 Website: www.allenlawyers.com.au

Disclaimer: This article is general in nature and does not constitute legal advice. Please consult with a qualified defamation lawyer regarding your specific circumstances.