Defamation in Australia: how we shape global reputation law

On the world stage, Australia’s reputation is headlined by some classic stereotypes: there’s the ‘shrimp on the barbie’ ocker attitude, our sporting obsession, and the idea that we’re surrounded by an endless stream of deadly animals.  

In some circles, Australia’s reputation is tied to something surprising – we’ve been called the defamation capital of the world, largely because we had 10 times the number of defamation cases (per capita) as the UK between 2014 and 2018. 

Australian defamation cases are big news. In a world-first proceedings were issued against ChatGPT for defamation. In recent years, we’ve seen the long-running Ben Roberts-Smith saga, defamation battles with tech giants and media companies suing each other, to name a few.  

So, is Australia’s reputation for defamation accurate? And how is the defamation landscape evolving both here and abroad? To answer these questions and everything else you might like to know about defamation law in Australia, we’re chatting with Deakin University’s Neerav Srivastava. 

What constitutes defamation in Australia? 

So, what constitutes defamation in Australia, then? 

‘Defamation is a statement published (made) to another that causes serious harm to the reputation of an individual,’ says Srivastava. ‘It may expose them to hatred, contempt, ridicule or cause them to be shunned.’ 

It’s important to remember that ‘truth’ is a defence against defamation. Srivastava has an example: ‘If I tell everyone that Jane is a murderer then that is a defamatory statement. If it is untrue, Jane has a claim against me. If it is true, she does not.’ 

Who can be sued for defamation in Australia? 

Up until recently, Australian defamation laws have covered broad ground. Specifically, the law covers not just those who make defamatory statements (like Srivastava alleging Jane is a murderer), but also those who publish those statements (the newspaper that published the allegation).  

‘So in traditional defamation, liability is imposed on both the maker of the statement and anyone else who publishes that statement,’ Srivastava says. ‘To be liable a party must publish the statement. Publication has a broad meaning – it basically means communication. For example, if there is a defamatory statement in a newspaper article, I can sue both the author and the newspaper.’  

With the emergence of the internet, defamation law had to try applying these concepts to new media and that has made things tricky.  ‘Under historical defamation law if an internet intermediary, such as Uber, was a publisher of a defamatory post by a user then it was potentially liable,’ Srivastava says. ‘Likewise, for a search engine.’ At least for the search engine, it may be felt that defamation law went too far. 

As we’ll see below, these laws have changed recently – and that’s important news. 

How much does it cost to sue for defamation in Australia? 

It’s always hard to put a figure on legal proceedings. How much it costs to sue for defamation in Australia depends on a huge range of factors. Courts usually detail their fees online (as in this example for civil proceedings in Victoria’s County Court), but the length of the case and the cost of representation will also come into play. 

For the most high-profile cases, though, defamation suits can often be extremely expensive. At the end of one of Australia’s most notable recent defamation cases – former soldier Ben Roberts-Smith’s suit against Nine newspapers and The Canberra Times – Roberts-Smith was ordered to pay $25 million in legal fees to his opposing side.  

Recent changes to Australian defamation law 

While Australia has had its fair share of defamation cases in the past few decades (remembering that we had 10 times more defamation cases than the UK during the 2010s), we might not be the defamation capital of the world anymore, thanks to some recent law changes. 

‘Whether or not that reputation was justified, legislative developments and cases in recent times have made it much more difficult to sue for defamation,’ says Srivastava. ‘Making a defamation claim is no longer easy in Australia.’ To make a defamation claim, the claimant needs to show serious harm, which may prove a hard threshold to satisfy.  

Another big change is search engine immunity. Back in 2004, the Age newspaper published an article that seemed to imply that Melbourne lawyer George Defteros was a criminal. Defteros sued search engine Google in 2016, arguing that the tech company had defamed him by ‘publishing’ the article. In 2020, Defteros won the suit. 

In the wake of the Defteros case (and as a result of others like Fairfax Media Publications Pty Ltd v Voller), the law has changed, providing providing exemptions for: 

• Digital intermediaries providing caching, conduit or storage services  
• Search engine providers  
• Publications involving digital intermediaries if it has an accessible complaint mechanism and reasonable access prevention steps were taken 

How does defamation law in Australia compare to the rest of the world? 

With these changes, it might not be fair to say that Australia is defamation-happy anymore. While Srivastava says that it might still be easier to sue for defamation in Australia than the USA, we’re no longer leagues ahead of the UK. ‘If we compare current Australian law to other jurisdictions then it is now in line with the UK position,’ says Srivastava.