Defamation – what is required to establish ‘serious harm’?

The Federal Court of Australia recently handed down a decision in Selkirk v Hocking (No 2)[1] shedding light on the serious harm element of the cause of action for defamation.

Background

In November 2019, Ms Selkirk was convicted of multiple counts of dishonestly obtaining financial advantage by deception by using falsified receipts to return goods to David Jones stores on 17 occasions. Ms Selkirk was found guilty by the Downing Centre Local Court of using a fake name and receipts to swindle David Jones stores out of approximately $16,000 between July 2016 and August 2018.

The Supreme Court of New South Wales overturned the local court convictions on appeal, finding the Crown failed to prove an essential element of the charges, namely where Selkirk originally obtained the goods[2].

In June 2021, an article reporting on Selkirk’s local court convictions became publicly available on www.MyLocalPages.com.au, a website owned by Real Estate Online Pty Ltd. Selkirk commenced defamation proceedings over the article in the Victorian registry of the Federal Court of Australia against Real Estate Online and its sole director, Martin Wyatt. Selkirk alleged the article defamed her by imputing, amongst other things, that Selkirk was a criminal despite the convictions being overturned. Ms Selkirk claimed that article caused serious harm to her professional reputation and that the “imputations as alleged pose a serious risk to [her] ability to obtain gainful employment in a legal or executive role”[3].

‘Serious harm’

Section 10A(1) of the Defamation Act 2005 (Vic) (Act) provides that it is an essential element of the cause of action for defamation that the Court is satisfied that defamatory material ‘has caused, or is likely to cause, serious harm to the reputation’ of the claimant. To show the material ‘has caused’ serious harm, the claimant must point to harm already caused by the publication. To show the material ‘is likely to cause’ serious harm, the claimant must show that harm will probably occur in the future. Similar requirements to establish serious harm exist in all Australian jurisdictions except for the Northern Territory and Western Australia[4].

Finding

The Court found that ‘serious harm’ required some form of historic harm, which is shown to have actually occurred. The Court found that this was a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. The difficulty with Ms Selkirk’s case, and the evidence led in support of it, was that neither address the critical question of whether the publication of the article caused any, let alone any serious, harm to Ms Selkirk[5].

The Court found that the evidence went no further than vague assertions by Ms Selkirk that between February 2022 and September 2022, when she obtained employment in her field, the process of finding a job did not go very well, offers went cold and a number of referees were not contacted. The Court found that if those things were attributable to the publication of the article (which was not proven) they do not constitute ‘serious harm’ within the meaning of s 10A(1) of the Act.

The Court also considered the extent of publication of the article. In this case, the evidence showed that only two third parties read the article prior to it being taken down. The Court found the serious harm element had not been met due to the ‘very limited’ extent of publication, although it noted that serious harm can still occur despite limited publication in some circumstances.

Key Takeaways

In determining whether the serious harm element of a cause of action for defamation has been satisfied, the Court may have regard to:

• whether the claimant’s reputation has been seriously damaged and whether that damage can be attributed to the publication;
• the extent of publication of the material, with a greater degree of publication being indicative of greater reputational harm; and
• the claimant’s reputation prior to publication, particularly whether the claimant had a reputation to lose.

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Authored by:

Susan Goodman, Partner
Phoebe Brosnan, Special Counsel
Martin Van Aardt, Lawyer

[1] [2023] FCA 1085.

[2] Ibid at [73].

[3] Ibid at [83].

[4] Ibid at [14].

[5] Ibid at [84].