The law of defamation protects individuals and certain corporations’ reputation. The law assumes that all people are of good character until the opposite is proved.

People may believe that they have been 'defamed' if someone says or implies something negative about their character to a third person but whether this is defamatory depends on factors such as its context and to whom it was said. Each case depends on its facts. Words and other matter (such as cartoons) can be defamatory by innuendo - that is, where the reader has to put two and two together to understand the defamatory meaning.

Generally, whether something is defamatory is to be determined on the basis of its 'natural and ordinary meaning'. The test of what is or is not defamatory depends on the standards of the community as a whole and not just of some narrow section or group.

However, there are circumstances, where publication is made to people whose special knowledge or expertise results in its bearing a special meaning (based on that knowledge or expertise) which may be defamatory of a third person.

The Defamation Act 2005 (SA) requires the aggrieved person to establish:

It does not matter whether or not the publisher of the material intended to refer to or disparage a particular person. It is generally enough if:

Statements that have caused or are likely to cause serious harm to a person's reputation are actionable for defamation. These statements can include social media comments, social media posts, or even online reviews. Harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, serious financial loss. An excluded corporation is defined in section 9 of the Act, and is discussed further below in Who can be defamed?

It is not enough to establish that the publication caused only slight or insubstantial harm. ‘Serious harm’ to reputation is now a required element for a plaintiff to establish a cause of action. For individuals, whilst evidence of financial loss may potentially be relevant, it is not a necessary component.

Law in relation to Defamation

The law of defamation in South Australia is largely governed by the common law, supplemented by the Defamation Act 2005 (SA). The purpose of the law of defamation is to protect a person's reputation (generally by awarding damages for serious harm), while at the same time protecting the right to freedom of speech.

Major amendments to the Defamation Act 2005 (SA) commenced on 1 July 2021. These apply in relation to the publication of defamatory matter after the commencement of the amendments.

The information contained in this chapter has been updated to reflect the changes. All references in this chapter are to the Defamation Act 2005 (SA) unless stated otherwise.

Whilst section numbering varies, the legislation is uniform throughout the States and Territories of Australia.

Commencing Court Action

Importantly, see Time Limits.

Defamation actions tend to be time consuming and expensive. Delays in the Courts often mean that an action is decided long after the cause of grievance has been forgotten by all but the parties involved. At the end of a case a Court can only award monetary damages or an injunction, see Remedies. The Court cannot order an apology. An apology is a separate matter, see Apologies. Reliving hurtful events is stressful and the emotional trauma of defamation can seldom be cured by the satisfaction of winning a case or from compensation. Litigation should not therefore be commenced without careful thought and expert legal advice.

Generally, defamation proceedings cannot be commenced without the aggrieved person first issuing the publisher a concerns notice setting out the defamatory imputations [s 12B]. This allows the publisher 28 days to respond with an offer to make amends [s 14(2)(b)] or a request for further particulars, by giving the aggrieved person a written further particulars notice [s 12A(3)]. The aggrieved person has 14 days to provide the further particulars [s 12A(4)]. In the event that the aggrieved person fails to provide the reasonable further particulars within 14 days of receiving the notice for further particulars then it is taken that they have not published a concerns notice. If the aggrieved person provides further particulars after 14 days have already elapsed since giving the concerns notice, then the publisher has a further 14 days to respond with an offer to make amends [s 14(2)]. If the aggrieved person provides further particulars before 14 days have elapsed since giving the concerns notice, the period remains 28 days from the concerns notice [s 14(2)(b)].

The Court may give permission for proceedings to be commenced before the response period has elapsed if the plaintiff satisfies the Court that time limit to issue proceedings is about to expire or if it is just and reasonable to do so [s 12B(3)].

It should be noted that a defamed person may elect to (but is not required to) serve a pre-action document on the publisher prior to the commencement of defamation proceedings under the Uniform Civil Rules 2020 (SA). A pre-action document has additional requirements on both the aggrieved person and publisher to that of the Defamation Act.

Legal advice should be sought before commencing court action.