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When Does Online Defamation Cross the Line? A Look at “Serious Harm” in Australian Law
Picture this…
You’re scrolling through Facebook when you see a post from a friend saying you looked terrible in a recent photo. The comments roll in, and you feel a bit stung—but it’s just Facebook, right? Or maybe you’re an artist on social media, and someone accuses you of bullying when you simply defended your work, claiming they were copying your art. The word “bully” sticks, and your followers start to drop. Then, imagine you’re a small business owner, and someone posts a negative Google review, unfairly calling your business a scam.
Soon, word spreads in your community, business slows, and, eventually, you’re forced to shut down.
Each scenario has a different level of harm, but they all leave a mark on your reputation. So, when does online criticism cross the line into defamation? And what does Australian law say about the level of harm needed to make a successful claim?
With changes in defamation law, Australia now requires claimants to prove “serious harm.” Let’s explore what that means for individuals, artists, and businesses who face damaging comments online.
What is Defamation, and How Does “Serious Harm” Fit In?
Defamation happens when someone publicly shares information that harms your reputation. This harm can vary greatly—from a few unkind comments that sting to a serious loss in business or personal relationships. Previously, even minor harms could sometimes lead to defamation cases, but recent changes to Australian law have raised the bar, requiring proof of “serious harm.”
The “serious harm” test is part of the effort to make sure defamation cases are only pursued when genuinely significant damage has occurred. It recognises that in today’s world, online criticism can be everywhere. So, for a successful claim, you now need to show that the damage is more than just a temporary bruise to your reputation. In many ways this makes sense, so, lets continue by looking at some case studies and then examining the law in more detail.
How Serious Harm Plays Out in Different Situations
Scenario 1: Hurtful Comments on Social Media
If someone says you look bad in a photo on Facebook or that red is not your colour or that you have put on weight and need to lose it, it may be hurtful, but it may not necessarily meet the “serious harm” threshold for defamation.
Personal opinions are shared all the time on social media platforms and mild, offhand comments may not necessarily lead to reputational damage.
Yes it can hurt, but Australian defamation law now focuses on your reputation being affected as well.
Scenario 2: Accusations of Bullying on an Artistic Platform
If someone accuses you of being a bully for a comment you made, well, then it may start to cross into a grey area.
Defamation could come into play if these accusations lead to lost opportunities, damaged relationships with clients, or even harm your professional standing. But under the “serious harm” test, you’d need to prove that these accusations caused genuine damage.
Always Use a Defamation Lawyer – Never Be Your Own Lawyer
Australian defamation law is complex, and navigating it without professional help is risky.
A skilled defamation lawyer will know how to gather the right evidence, evaluate the harm done, and guide you on the best course of action.
With the “serious harm” standard now in place, working with a professional ensures that your case is built on strong evidence, increasing your chances of a successful claim.
Don’t get lost in translation
We all know context plays a huge role in how words are interpreted.
When it comes to assessing defamation claims, we can tell you this: it is no different.
A single word or phrase can mean vastly different things depending on where and how it’s used. Often, whether it’s ultimately harmful or harmless will depend on the context.
Are you a bully?
Take the term “bully” as an example. If someone calls you a bully on social media for calling out a critic, it could harm your professional reputation, especially if you’re a business owner who depends on public trust. In this context, the accusation of bullying might suggest that you’re unkind, unethical, or aggressive qualities that could lead clients or followers to distance themselves.
But on the sports field, being called a “bully” might mean something entirely different. In rugby or football, for instance, it could simply mean you play with strength and tenacity. Here, it’s not damaging—it’s a compliment on your skills and competitive spirit.
Yes, so context changes the word’s meaning and impacts whether it is defamatory.
Comment – defamation claims are never one-size-fits-all
The above example highlights why defamation claims are never one-size-fits-all.
Australian Courts consider the entire setting in which the words were used, and often, an everyday word that’s harmless in one scenario can be damaging in another.
This is also why having a defamation lawyer is so essential. A lawyer will look at how the words were used, who they were said to, and the impact they had to determine if there’s a real basis for a defamation claim.
Scenario 3: Damaging Business Reviews on Google
When it comes to business, defamation can be particularly damaging.
Imagine that a false Google review accuses your business of being a scam, and you notice you are getting less and less customers over time because of it. People are talking.
If your reputation takes a hit, and your business loses income or even has to shut down, it could be getting far closer to the “serious harm” standard.
Under Australian defamation law, showing financial harm or a significant drop in community reputation this can boost your case.
The Importance of Serious Harm in Defamation Cases
The “serious harm” threshold helps prevent minor disputes or “internet beefs” from escalating into full-blown legal battles. It’s a way of ensuring that only substantial, real-world impacts can be pursued under defamation law. What the law wants to do is balance free speech with the protection of individuals and businesses.
The harm must be more than trivial.
You need to show that the defamatory statement caused damage that goes beyond hurt feelings—often involving financial losses, a decrease in reputation, or other serious impacts.
Final Thoughts: Protecting Your Reputation in the Digital Age
Defamation law in Australia now demands that claimants prove serious harm, a requirement that acknowledges the impact of online speech without opening the floodgates for minor grievances.
At Sharon Givoni Consulting, we understand the complexities of defamation law and can help you navigate a case if you’ve experienced serious harm to your reputation. With our expertise, we can guide you through the process, gather evidence, and present a strong case to protect your good name.
For more on defamation and how it applies to artists, see this detailed Defamation Law information sheet by Arts Law: https://www.artslaw.com.au/information-sheet/defamation-law/
A concerns notice is a formal written notice that a lawyer will generally write for you. It is sent to someone before taking them to court for defamation. It gives the person or entity who made the allegedly defamatory statement a chance to respond or resolve the issue outside of court. Under Australian defamation law, this notice is now a required step in defamation cases.
The notice must include many things and the form it needs to be in is very specific, these things include:
- Location of the Content: Clearly identify where the defamatory content can be found (e.g., a link to a webpage or specific social media post).
- Defamatory Meaning: List the specific parts of the content that you believe damage your reputation or business.
- Harm Caused: Describe the serious harm you believe this content has caused or is likely to cause to your reputation (or, for businesses, to financial standing).
- Copy of Content: Attach a copy or screenshot of the offending content to ensure clarity.
It’s like a heads-up and an opportunity for the person who posted the material to correct or take down the content. It’s also an important chance for the parties to resolve the matter quickly, possibly avoiding the cost and stress of a full legal battle.
Please note the above article is general in nature and does not constitute legal advice.
Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.