What Is the Serious Harm Threshold in Queensland Defamation?

A Queensland defamation claim now fails at the first step unless the publication caused, or is likely to cause, serious harm to the plaintiff’s reputation. The threshold was added to the Defamation Act 2005 (Qld) as s 10A by the national Stage 1 reforms, commencing on 1 July 2021.

Before the reforms, a claimant only needed to show the material was defamatory. Trivial claims could run all the way to trial. Section 10A was designed to stop that.

What the test requires

Section 10A makes serious harm an element of the cause of action. That means the plaintiff has to prove it. It is not something the defendant has to disprove.

• Harm to reputation, not feelings. Distress, embarrassment and anger go to damages. They do not establish serious harm on their own.
• Caused or likely to cause. Harm that has already happened counts, and so does harm likely to happen. The court looks at the real world impact, not just the words.
• Serious means more than substantial. The bar is higher than the old “more than trivial” standard.
• Companies face a financial test. An excluded corporation must show serious financial loss (s 10A(2)). Most corporations cannot sue for defamation at all (s 9).

Courts assessing serious harm typically consider:

1. How grave the imputation is (for example, an allegation of dishonesty or criminal conduct compared with mild rudeness).
2. The size and make-up of the audience, including whether it reached people whose opinion matters to the plaintiff.
3. How long the material stayed up and whether it was shared or repeated.
4. Actual consequences, such as cancelled contracts, lost clients, or evidence from people who changed their view of the plaintiff.

Example

A local tradesperson is accused in a 40,000 member community Facebook group of stealing from clients. The post stays up for a week and two customers cancel jobs, citing it. That is strong serious harm evidence. A single critical comment about punctuality, seen by a handful of people and deleted within hours, is unlikely to meet the threshold.

How serious harm shapes the concerns notice

A concerns notice under s 12A must, among other things, tell the publisher the harm the aggrieved person considers to be serious harm to their reputation (or, for an excluded corporation, serious financial loss). Proceedings cannot start until a compliant notice has been given and the applicable period for an offer to make amends has passed (s 12B). That period is generally 28 days.

In practice, the evidence you gather for serious harm doubles as the substance of your notice. See what to include in a concerns notice .

Where to sue

Once serious harm is in view, the next decision is the forum. Our commentary on defamation in the Federal Court explains the practical differences between suing federally and in the Queensland Supreme Court.

See Also

• Defamation concerns notices in Queensland
• Defamation law in Queensland: the complete guide
• Community Facebook groups and defamation risk
• Defamation and Federal Court jurisdiction

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.