Key points:

• The NSW Supreme Court has applied the “serious harm” test for a defamation action for the first time since its introduction last year, holding that a plaintiff is now obliged to prove serious harm as a fact in every case.
• While the question of how serious the “serious harm” must be to satisfy the test remains unclear, 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.
• Justice John Sackar also made some useful findings in relation to the continued application of the principles for online publication in Dow Jones v Gutnick, holding that a plaintiff is still obliged to prove that material was downloaded in comprehensive form by a person other than the plaintiff.

Serious harm test

The first decision given by an Australian court applying the “serious harm” test since amendments to defamation legislation were introduced on 1 July 2021 was handed down late last month in an interlocutory judgment and published today.

Sackar J confirmed in Newman v Whittington [2022] NSWSC 249 that the issue of serious harm would normally be determined before trial unless special circumstances suggest otherwise, including cost implications, the court’s resources and whether the determination of serious harm is linked to other issues during the trial.

The case involves a family dispute resolution practitioner alleging she was defamed by an overseas man in a number of posts on the internet.

His Honour said that, while the 2019 decision of the United Kingdom Supreme Court in Lachaux v Independent Print Ltd [2019] UKSC 27; [2020] AC 612 (Lachaux) is not binding on any court in Australia, it is nonetheless a “powerful and persuasive analysis of the analogous United Kingdom provision” and was considered by his Honour in detail.  Sackar J adopted the reasoning in that case, notwithstanding the slight differences between the legislative provisions and the development of the common law prior to the introduction of the legislative provisions.

His Honour held that the effect of the serious harm test in Australia is that:

• a plaintiff must prove serious harm as a necessary element of the cause of action in New South Wales since the introduction of s 10A
• s 10A has the effect of abolishing the common law rule that upon the publication of a defamation, damage is to be presumed; and
• a plaintiff is now obliged to prove serious harm as a fact in every case.

While Sackar J adopts much of what Lord Sumption said in Lachaux, the question of what “serious harm” is remains academic as this case did not call for an application of all of the relevant principles.

In particular, the Court in Lachaux held that “serious harm” is to be determined by reference to the actual facts about its impact and not just to the meaning of the words.  This means a plaintiff must show the words are inherently injurious to their reputation and that the words caused them serious harm.

In Lachaux, “serious harm” was established through evidence from the plaintiff, other witnesses and as to the extent of publication.  However the hearing before Sackar J was conducted only on the pleadings, meaning there was no evidence of the actual impact of the publications.  Ultimately, Sackar J did not consider that the pleadings clearly articulated an arguable case establishing serious harm and determined to strike it out.  However, given the novelty of the point, his Honour granted leave to the plaintiff to replead those paragraphs.

Proof of online publication

The amendments to the defamation law in 2021 also altered the common law position in Dow Jones v Gutnick (2002) 210 CLR 575 (Gutnick) that publication occurs in respect of material on the internet when the material is downloaded in comprehensible form – but only insofar as it relates to the calculation of the limitation period.  The single publication rule now provides that the limitation period commences from when material is uploaded to the internet, not when it is downloaded.

Sackar J in this case has confirmed that the principles in Gutnick still apply in relation to a plaintiff proving that publication to some person other than the plaintiff has occurred, and held that the plaintiff must plead and prove facts which establish that the material has been downloaded and viewed by someone (as held by Katzmann J in Massarani v Kriz [2022] FCA 80 at [53]).  Sackar J held that an inference of publication will generally not be drawn from the mere fact that material has been posted on the internet, and a plaintiff must prove to whom material was published and which jurisdiction the material was downloaded in.

This clarification is useful given the inconsistency between Gutnick and the single publication rule.

‍