NEWS

Murdoch and Crikey: A notable change of onus in NSW Defamation Law

Lachlan Murdoch, CEO of Fox Corporation and co-chairman of News Corp filed defamation proceedings against online news platform Crikey (as owned by Private Media Pty Ltd) in August 2022 (Murdoch Proceedings). These proceedings have the potential to test amendments to defamation law in NSW, in particular, the newly introduced serious harm element.

Defamation law in NSW now requires a serious harm element in all causes of action in defamation. The recent case of Newman v Whittington [2022] NSWSC 249 (24 February 2022) (Newman), has usefully articulated how the serious harm addition effects the common law on defamation in NSW.

THE DEFAMATION AMENDMENT ACT 2020 (NSW)

In 2020, the NSW government introduced the Defamation Amendment Act 2020 (NSW) (Amending Act) to commence on and from 1 July 2021. The Amending Act introduced a new section 10A, adding the serious harm element, and repealed section 33, being the defence of triviality.

Section 10A(1) states, “[i]t is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person” (emphasis in original).

THE EFFECT OF THE SERIOUS HARM ELEMENT

Newman is one of the first cases in NSW to consider the serious harm element in the context of NSW defamation law. Justice Sackar, in Newman, noted two fundamental changes to the law as a consequence.

Prior to the commencement of the Amending Act, defendants in actions for defamation could rely on the section 33, now repealed, defence of triviality. The defence of triviality was made out when the defendant proved that the plaintiff was unlikely to have suffered harm. There was difficulty in meeting the threshold for this defence, as (1) the onus was on the defendant to prove harm was not suffered and (2) the defendant faced a common law presumption that the plaintiff had suffered damage due to the defamatory publication.

The Amending Act has now switched the onus to the plaintiff to prove serious harm has been caused in an action for defamation, and further, effectively abolished the common law rule that damage is to be presumed upon publication of defamatory material (Newman at [69]). Simply put, this means that a plaintiff bringing proceedings for defamation must prove serious harm and cannot rely on a presumption of damage.

Justice Sackar, in reaching these determinations, applied the UK case of Lachaux v Independent Print Ltd [2020] AC 612 (Lachaux), adopting much of what that decision “had to say”. Newman does not, however, extend further than Lachaux does, to define or fully consider the factors that comprise serious harm. We await cases such as the Murdoch Proceedings, and others, to potentially clarify the common law position.

 

The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.

Related News

Walton Construction Class Action – Media Release

MEDIA RELEASE 16 May 2024 Subcontractors Alliance confirms that Williams & Kersten Pty Ltd, the Lead Applicant in a Federal Court class action against National

Read More

The duty of utmost good faith

In life, they say that honesty is the best policy. But did you know that it is actually also one of the most important provisions in

Read More

Recoveries against third party insurers direct

Did you know? When an at-fault third party cannot be found or is dead, or a third party company is deregistered, a cause of action

Read More

Get in touch

Contact our team today

Stay informed

Keep up-to-date with our regular news and insights

This field is for validation purposes and should be left unchanged.
William Roberts Lawyers

Sydney

Level 22
66 Goulburn Street
SYDNEY NSW 2000

Melbourne

Level 21
535 Bourke Street
MELBOURNE VIC 3000

Brisbane

Level 8
300 Ann Street
BRISBANE QLD 4000

Singapore

Level 19
Singapore Land Tower
50 Raffles Place
SINGAPORE 048623