The Serious Harm Test in Defamation Claims

Since 2022, all Australian states and territories except for Western Australia and the Northern Territory have amended their defamation laws to make it harder for a defamation claim to succeed. For a defamation claim to succeed in any of these jurisdictions, the claimant must now establish that the publication of the defamatory material has caused, or is likely to cause, serious harm to their reputation. This page deals with the introduction of the serious harm test in defamation claims.

Legislation on the serious harm test in defamation

The serious harm test is contained in section 10A of the Defamation Acts of the states and territory that have adopted it. It is up to the judicial officer (and not the jury) to determine whether serious harm has occurred. The serious harm element may be determined before the trial commences or during the trial.

Rationale for the serious harm test in defamation claims

The serious harm test was introduced to address defamation claims that are brought in response to trivial publications that do not cause serious harm and are not heard, seen or read by a large number of people.

There has been a growing number of such minor defamation claims in recent years, stemming from the proliferation of the use of social media as well as the growing importance of Google and Facebook reviews. In cases where negative comments have been posted on social media about a person or a company, or a negative review of a business has been posted, the amount of damages likely to be awarded to a defamed party was felt to be out of proportion to the cost of bringing proceedings.

Scott v Bodley and the serious harm test in defamation claims

The 2022 New South Wales District Court decision of Scott v Bodley involved a defamation claim by Dale Scott against Bettina Bodley after Bodley posted a one-star review of Scott’s painting business on Facebook and Google. Scott claimed the reviews led to a significant damage to his reputation, a contraction of his business and a loss of earnings. The court found that Scott has failed to establish serious harm to his reputation as required by the serious harm test under section 10A of the Defamation Act 2005.

Background

Bodley and her husband had contacted Pottsville Painting Services for a quote for internal and external painting of their house in 2021. The work was carried out to a standard they were unhappy with, and a review was posted. The review was accompanied by photos and stated that the work had over 130 defects, and had resulted in damage to their property. It was public for two weeks.

The imputations of the review were that Scott had behaved incompetently, unprofessionally and dishonestly in carrying out the job, and had verbally abused Bodley.

Scott gave evidence that he had been a painter for 27 years and worked mainly in the Pottsville area, did not advertise, but encouraged customers to post reviews of his business. He had been told by customers that they had chosen his business because of positive reviews. His business previously had a 5/5 Google rating.

After Bodley’s review was published, Scott said he had noticed an immediately reduction in calls and business. He provided tax returns that showed a significant reduction in earning for the 2021 financial year as compared to the previous two financial years. He said that he went from receiving six to eight enquiries per week to only one or two and that the situation continued after the review was removed.

Bodley challenged Scott’s evidence on a number of grounds including that there was no evidence of any particular customer being deterred by the review, or even reading it; that the data needed to determine the causes of his loss were not provided; and that Scott had advertised for an apprentice during the period he claimed his business had contracted.

The court’s findings

The court found that there were inconsistencies in the evidence of loss of business and financial records that suggested the business was in fact doing well. It also found that changes in business patterns had not been explained and that the court was being asked to infer that reductions in calls were due to Bodley’s reviews.

It further found that it was likely that no one saw or read the reviews, which were public for only two weeks. Scott could not nominate a single person who saw the reviews and relied on the inference that they were read widely. There was no evidence of the grapevine effect (that others commented on the reviews). Google reviews are expressions of opinion and many, if not most, business sites contain unflattering reviews.

Conclusion

The court found that the plaintiff had not established harm to his reputation, much less serious harm, as a result of Bodley’s reviews. The reviews contained personal experience and opinion and the imputations were not serious. The claim is an example of a ‘backyard’ defamation action based on a trivial claim.

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