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 The Amending Act introduced a new section 10A, adding the serious harm element, and repealed section 33, being the defence of triviality.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Prior to the commencement of the Amending Act, defendants in actions for defamation could rely on the section 33, now repealed, defence of triviality.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.
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