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

Someone may believe that they have been 'defamed' if a person has said or implied something negative about their character to a third person. 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) may be indirectly defamatory, such as through innuendo, where the actual words are not defamatory but have a secondary 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, in some situations, something may be said or conveyed 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 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). 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.

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 free expression.

Commencing Court Action

Defamation proceedings must generally be commenced within 1 year of the date of publication [Limitation of Actions Act 1936 (SA) s 37]. See Time Limits for more information.

Defamation actions can 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 being awarded compensation. Litigation should not 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 [Defamation Act 2005 (SA) s 12B]. This gives the publisher 28 days to offer to make amends [s 14(2)(b)] or request further particulars [s 12A(3)]. The aggrieved person has 14 days to provide the further particulars sought [s 12A(4)]. If the aggrieved person fails to provide the further particulars within 14 days of the request, then the law treats the original concerns notice as not having been provided [s 12A(5)].

If the aggrieved person provides further particulars after the 14-day time limit, then the publisher has a further 14 days to respond with an offer to make amends [s 14(2)(a)]. If the aggrieved person provides further particulars within the 14-day time limit, 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 the time limit to issue proceedings is about to expire or if it is just and reasonable to do so [s 12B(3)].

An aggrieved person may choose (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 imposes requirements on both the aggrieved person and publisher that are additional to the requirements of the Defamation Act 2005 (SA).

Always seek legal advice before commencing court action.