A reset for defamation in Australia
On 1 July 2021 the most significant changes to Australian defamation law since the uniform laws of 2005 came into effect. The Model Defamation Amendment Provisions were adopted in New South Wales through amendments to the Defamation Act 2005 (NSW), with corresponding changes in other states and territories. The aim was to rebalance the law between protecting reputation and protecting freedom of expression, and to discourage trivial claims from reaching court.
Anyone thinking about bringing a claim, or responding to one, needs to understand three changes in particular: the serious harm threshold, the mandatory concerns notice and the single publication rule.
The serious harm threshold
Section 10A of the Defamation Act 2005 (NSW) now makes serious harm an element of the cause of action. A publication is not actionable unless it has caused, or is likely to cause, serious harm to the reputation of the person concerned.
For an excluded corporation, which includes a not for profit or a company with fewer than ten employees that is not related to another corporation, serious harm requires serious financial loss.
In practice this means that hurt feelings, or a statement that has been read by a handful of people who think no less of you, are unlikely to be enough. The question is about consequences for your reputation, and evidence matters. Who read it? Who are they to you? What happened afterwards? Did clients, employers or colleagues react? These facts should be gathered early, while they are fresh.
The serious harm question will often be decided at an early stage of proceedings, before the parties have spent the cost of a full trial. That is a sensible change, but it means a claimant has to be ready to prove harm from the outset.
Concerns notices are now mandatory
Before the reforms, a concerns notice was an optional step that opened the door to the offer to make amends process. Now, under section 12B, a person cannot commence defamation proceedings unless they have first given the publisher a concerns notice, the imputations are particularised in it, and the applicable period for an offer to make amends has passed.
A concerns notice must be in writing and must identify the matter complained of, the defamatory imputations the person says it carries, and the harm they say has been caused or is likely to be caused. The publisher then generally has 28 days to make an offer to make amends, which may include a correction, an apology, removal of the material or payment of costs and compensation.
This is not a formality. The quality of the concerns notice shapes the whole dispute. A notice that is vague about the imputations or the harm can be met with a request for further particulars, and defects can delay the right to sue. A well drafted notice, on the other hand, often resolves a matter without litigation, because it gives the publisher a clear and early opportunity to fix the problem.
For publishers, the reforms give a real incentive to engage. A reasonable offer to make amends that is not accepted can be a defence if the matter later goes to court.
The single publication rule
Online material is published every time it is downloaded or viewed, which in the past meant the limitation period could in effect restart for as long as an article remained online. The reforms introduced a single publication rule through section 14C of the Limitation Act 1969 (NSW).
The limitation period of one year now runs from the date of the first publication, rather than from each later download, provided the later publication is not materially different in the way it is published. A court can extend the period in some circumstances, but the outer limit is three years from the first publication.
The message is simple. If you have been defamed, time is short. Delay can extinguish a claim that would otherwise have been strong, and the time spent on the concerns notice process needs to be built into the timetable.
A new public interest defence
The reforms also introduced a public interest defence in section 29A, modelled on the equivalent defence in the United Kingdom. I discuss it in a separate article, but in short, it protects a publisher who reasonably believed that publishing the matter was in the public interest.
What this means for you
For people whose reputation has been damaged, the reforms reward early, organised action: record the publication, gather evidence of harm, and get advice on a concerns notice before the limitation clock runs down.
For publishers, from media organisations to individuals with an online audience, the reforms reward a measured response: take a concerns notice seriously, consider whether a correction or offer to make amends is appropriate, and keep a record of the steps taken before publication.
Defamation law remains technical, and a good outcome usually depends on the first few weeks. If you are dealing with a publication now, you can read more about my areas of practice or get in touch through Mark O'Brien Legal.
General information, not legal advice. This article is general information about the law in New South Wales as at 6 October 2026. It is not legal advice and should not be relied on as such. Laws differ between states and territories and every matter depends on its facts. For advice on your situation, please contact Mark through Mark O'Brien Legal.