Understanding serious harm in defamation law – key lessons from recent cases

In our July 2022 article "Serious harm" in defamation law - we explained the introduction of a new mandatory "serious harm" element under the Defamation Act 2005 (NSW) (Act). At the time of that article, there had only been one case in New South Wales to consider the serious harm element.

Since then, several case law developments have occurred. This article examines recent cases in New South Wales and explains the lessons they provide about serious harm in defamation law.

As a result of the new serious harm threshold, defamation actions are harder than ever to prosecute. Indeed, the policy intention of preventing frivolous "back fence" disputes where the costs exceed damages appears to be materialising with several claims dismissed for failure to reach the high serious harm threshold.