Filtering the frivolous: NT adds serious harm threshold to its Defamation Act

Defamation legislation is largely uniform across Australia – with some exceptions and some states adopting amendments quicker than others.

Last week, the ‘serious harm’ threshold was adopted into the Defamation Act 2006 (NT) (the Act).

The introduction of a serious harm threshold was intended to encourage early resolution of defamation claims and reduce the burden on the Courts – particularly where claims do not meet the threshold of ‘serious harm’.

Serious harm to reputation is now an element of the cause of action of defamation (see s 9A of the Act). This means that a claimant cannot proceed if they cannot demonstrate that they have met this threshold.

The Act contains a pathway for bringing the issue to a head where a defendant does not believe the claimant can prove serious harm (or on the judicial officer’s own motion – see s 9A(3)-(4)). An application can be made to the Court for the issue to be heard as a preliminary issue. This means that if serious harm cannot be proved, the proceedings will be dismissed.

What does serious harm mean?

The claimant must be able to establish serious harm to their reputation.  The person’s upset or embarrassment will not be relevant to that test.

The claimant’s pre-existing reputation will be relevant to the analysis – there is no presumption that a person is a person of ‘good reputation’ and so the argument goes, you cannot damage a bad reputation (or perhaps you cannot seriously harm a bad reputation).

That harm must be caused by the relevant defamatory publication meaning that other rumours or other publications may be relevant to the claimant’s pre-existing reputation.

In decisions in other states (see Whittington v Newman [2024] NSWCA 27), it has been found that serious harm can be inferred in some cases. Newman did not clarify the question of how serious the 'serious harm' must be to satisfy the test but it appears the Court accepted the UK approach that serious harm is a question, which must be determined by reference to actual facts of a publication’s impact and not just to the meaning of the words.  The plaintiff is obliged to prove serious harm as a fact in every case.

The adoption of the serious harm threshold will come as welcome news to our insurer clients (and to defendants alike) – ensuring that only claims which reach the threshold of serious harm may be pursued in the Courts – with mechanisms to have the issue determined at an early stage.

If we can assist with a defamation issue arising in the Territory, please reach out to George Roussos (Partner), Lani Carter (Special Counsel) or Arelene Lowry (Partner).