In Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44; [1993] HCA 31, Brennan J said: “The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation ….”

The principal remedy for a person who has been defamed is damages. The court awards money as compensation for the harm done to a person's reputation and injury to their feelings.

As at 1 July 2024, damages for non-economic loss are limited to a maximum of $478,500 [Defamation Act 2005 (SA) s 33(3); Government Gazette 13 June 2024]. This is indexed annually. It is quite possible for people to show that they have been defamed but still not receive substantial damages.

The maximum damages amount is to be awarded only in the most serious cases [s 33(2)]. The Court can, however, award aggravated damages, if warranted in the circumstances, and this is made separately to any award of damages for non-economic loss [s 33(2a), (2b)].

Compensation for actual economic loss may be awarded separately and is not capped.

The state of mind of the defendant generally is not relevant in awarding damages but an apology or correction are factors that can be taken into consideration [ss 34, 36].

An injunction is an effective remedy as it is a court order preventing or requiring a specific act of defamation, for example, halting the publication of a particular article in a newspaper or requiring a webhost to remove defamatory material from a site. Injunctions are rarely granted in defamation actions, unless it is clear that the statement is defamatory and that the defendant does not intend to plead a defence. It may be used to prevent an intended defamation or where there is a real danger that a person will repeat a defamation already published.

Defamation proceedings must generally be commenced within one year of the date of publication [see Limitation of Actions Act 1936 (SA) s 37]. For electronic publications, this means the day on which the matter was first uploaded for access or sent electronically to a recipient.

If a concerns notice (under s 12A of the Defamation Act 2005 (SA)) is given to the publisher on a day (the notice day) within the period of 56 days before the 1 year limitation period expires, then the limitation is extended for an additional 56 days minus any days remaining after the notice day until the one year limitation period expires [ ss 37(2), 37(3)].

Single publication rule

If a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same, then any cause of action for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when:

-the normal limitation period applicable under section 37 begins; or

- the extended 3-year period referred to in section 37B(2) begins, see Extension of limitation period below.

This single publication rule does not apply in relation to a subsequent publication if the manner of that publication is materially different from the manner of the first publication. In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the Court may have regard include the level of prominence that a matter is given and the extent of the subsequent publication.

The single publication rule does not limit the Court’s ability to extend the limitation period applicable under section 37 (see 37B).

Extension of limitation period

The Court may extend the limitation period to up to 3 years running from the date of the publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. In determining whether to extend the limitation period, the Court must consider all of the circumstances of the case and in particular the factors outlined in section 37B(3) of the Limitation of Actions Act 1936 (SA).

Such factors include:

Other remedies that may be applicable as an alternative to defamation include an action for injurious falsehood. In this situation, the injured person or corporation will have suffered a monetary loss as a result of a false statement made dishonestly or with intent to cause loss and without any lawful justification. An action in injurious falsehood requires a finding of the Court either that the defendant intended to cause harm or that the harm was the natural and probable result of a false and malicious statement.

In some cases, an injured party may have a course of action under the section 18 of the Australian Consumer Law for deceptive or misleading conduct.