Defamation Act 2005

The Act casts a wide net. “Publisher” is not exhaustively defined but encompasses anyone who publishes “matter”, itself broadly defined in s 4 to include articles, broadcasts, internet communications, letters, pictures, gestures and any other means of conveying meaning. This obviously catches traditional media organisations, journalists, authors, broadcasters and printers.

The 2025 amendments expressly introduce the concepts of “digital intermediary”, “poster” and “online service”. A digital intermediary is any person other than the author, originator or poster who provides or administers the online service by which digital matter is published (s 4). Examples expressly given in the definition of “online service” include social media platforms, forums, knowledge-sharing websites and any service enabling users to send, receive, store, index, search, share or interact with content. Consequently, every internet service provider, platform host, search engine, forum moderator and cloud storage provider that facilitates publication falls within the potential scope of the Act, particularly through the new orders available under s 37A and the innocent dissemination defence in s 30.

Aggrieved persons are natural persons and those “excluded corporations” that satisfy the narrow criteria in s 9(2): either formed without the object of financial gain for members or having fewer than ten employees and not an associated entity of another corporation, and not a public body. Larger corporations and most governmental bodies are barred from bringing defamation actions, although individuals associated with them retain personal rights (s 9(5)).

Public bodies, parliamentary speakers, judges, witnesses, law reform bodies, ombudsmen, learned societies, sporting associations and trade associations are all expressly protected when publishing or reporting on matters within the extended definitions of absolute privilege and fair report of proceedings of public concern (ss 25, 27).

Posters of digital matter are directly affected by the preliminary discovery regime in s 21A, which requires courts to balance the Act’s objects against privacy and safety considerations before ordering disclosure of identifying information or addresses. Non-party digital intermediaries can be subjected to access prevention orders even though they have not been found liable (s 37A(6)).

Legal practitioners, judicial officers and costs assessors are affected by the procedural and costs rules, particularly the mandatory concerns notice precondition (s 12B), the early serious harm determination power (s 10A), and the costs presumptions in s 38 that can result in indemnity costs for unreasonable conduct in settlement negotiations.

Finally, the Crown is bound in all capacities (s 5), and the Act interacts with the limitation regime in the Limitation of Actions Act 1936 (as amended by the Defamation Act itself).

Plaintiffs’ rights are conditioned on satisfying the serious harm element (s 10A) and serving a compliant concerns notice before commencing proceedings (s 12B). They have the right to particularise imputations, to receive a timely offer to make amends, and to have damages assessed rationally against proven harm. They may also seek orders under s 37A against non-party digital intermediaries once judgment or an injunction has been obtained against the primary defendant.

Defendants enjoy an expanded suite of defences. The defence of justification requires only that the imputations complained of are substantially true (s 23). Contextual truth (s 24) permits a defendant to rely on substantially true imputations that the plaintiff has not complained of, provided those imputations mean the additional imputations do not further harm reputation. The public interest defence (s 27A) turns on whether the defendant reasonably believed publication was in the public interest, assessed by reference to a non-exhaustive list of factors including seriousness of the imputation, distinction between allegation and proof, steps taken to verify, and the importance of freedom of expression.

Qualified privilege under s 28 is available where the recipient has an interest or apparent interest in the information and the defendant’s conduct is reasonable. The section expressly states that it is not necessary to prove the matter concerned an issue of public interest (s 28(3b)). Honest opinion (s 29) protects expressions of opinion based on proper material that is either set out in the publication, notorious, accessible by hyperlink, or otherwise apparent from context. The peer review defence (s 28A) is narrowly tailored to scientific or academic journals that have undergone independent expert review.

The innocent dissemination defence (s 30) protects subordinate distributors who neither knew nor ought reasonably to have known the matter was defamatory and whose lack of knowledge was not negligent. The list of subordinate distributors expressly includes booksellers, librarians, wholesalers, postal providers, live broadcasters without editorial control, processors of electronic media, operators of communications systems without effective control, and printers acting on instructions.

All parties have the right to make or accept settlement offers outside the statutory offer-to-make-amends regime (s 12(3)). An apology cannot be used as evidence of fault or liability (s 20), although it may mitigate damages (s 36(1)(a)).

Courts are given active case management powers, including early determination of the serious harm element (s 10A), permission requirements for multiple proceedings (s 21), and the ability to order costs on an indemnity basis where a party has acted unreasonably in relation to settlement (s 38(2)).

The Act is civil in nature; it does not itself create criminal offences. Section 39 expressly provides that criminal proceedings under s 257 of the Criminal Law Consolidation Act 1935 (SA) (the surviving criminal libel provision) do not bar parallel or subsequent civil defamation proceedings.

Enforcement occurs through the remedies available in civil proceedings. The primary remedy is damages, subject to the statutory cap on non-economic loss (s 33), the rational relationship requirement (s 32), the prohibition on exemplary or punitive damages (s 35), and the mitigation factors in s 36. Aggravated damages remain available and are assessed separately from the capped non-economic loss component (s 33(2a)–(2b)).

Injunctive relief is preserved. Section 37A adds a powerful new enforcement tool: once a plaintiff has judgment or an injunction against a defendant, the court may order a non-party digital intermediary to take one or more access prevention steps (removal, blocking, disabling access) or any other steps the court considers necessary. The order can be temporary or final, can apply to all or only some users of the service, and can be made even if the intermediary has a defence to liability (s 37A(6)). The intermediary must be given an opportunity to be heard except where urgency justifies a temporary order without notice (s 37A(5)).

Costs are a significant enforcement mechanism. Section 38(2) creates a presumptive entitlement to indemnity costs where a successful plaintiff shows the defendant unreasonably failed to make or accept a reasonable settlement offer, or where an unsuccessful plaintiff unreasonably failed to accept a defendant’s reasonable offer. The definition of “settlement offer” expressly includes offers to make amends.

Failure to serve a concerns notice or to allow the applicable period to elapse before filing prevents commencement of proceedings (s 12B), although the court may grant permission in limited circumstances where limitation issues arise or it is just and reasonable (s 12B(3)).

The Act is expressly designed to operate uniformly with mirror legislation in other Australian jurisdictions. Section 11’s choice of law rules ensure that, for publications wholly within one Australian jurisdictional area, that area’s substantive law applies, while for multiple publications the law of the jurisdiction with which the harm as a whole has its closest connection governs. The factors in s 11(3) mirror those in the uniform Acts.

The statute constantly cross-references the “general law” (common law and equity). Section 6(3) specifically preserves the common law as it would have been had Part 2 of the Civil Liability Act 1936 never been enacted. Defences under the Act are additional to, and do not limit, general law defences (s 22).

Interaction with the Corporations Act 2001 (Cth) occurs through the definitions of “associated entity” (s 50AAA) and “excluded corporation”. The employee counting rules in s 9(3) and the extended definition of “employee” in s 9(6) are tailored to prevent large corporate groups from circumventing the bar on corporate actions.

The Limitation of Actions Act 1936 is directly amended by the Defamation Act (see Sch 1 cl 8) and contains special rules for multiple publications straddling the commencement of the uniform scheme.

The Evidence Act 1929 and other procedural statutes are engaged by the proof of publication presumptions in s 40 and the service rules in s 41.

For digital intermediaries, the Act interacts with Commonwealth telecommunications and online safety legislation, although it does not purport to override Commonwealth law. The objects clause (s 3) and the mandatory considerations in s 21A(2) (objects of the Act, privacy, safety and public interest) require courts to weigh competing statutory policies.

Schedule A1 expands absolute privilege to matters arising out of Parole Board proceedings under the Correctional Services Act 1982, illustrating the Act’s integration with other South Australian statutes.

The most significant recent changes are contained in the Defamation (Miscellaneous) Amendment Act 2020 (commenced 1 July 2021) and the Defamation (Miscellaneous) Amendment Act 2025 (commenced 15 December 2025).

The 2020 amendments introduced the serious harm element (s 10A), the concerns notice and further particulars notice regime (ss 12A, 12B), the revised offer to make amends rules, the new public interest defence (s 27A), the revised qualified privilege defence (s 28), the scientific or academic peer review defence (s 28A), updated honest opinion rules (s 29), the single publication rule clarification, and adjustments to the damages cap and costs provisions. These changes were driven by the need to reduce the burden of trivial claims, encourage early resolution, and give greater protection to responsible journalism on matters of public interest in response to the rise of online speech and strategic litigation against public participation.

The 2025 amendments focus on digital publication. They insert definitions of “access prevention step”, “digital intermediary”, “digital matter”, “online service” and “poster” (s 4). They expand absolute privilege to publications to police officials acting in an official capacity (s 25(2)(ba)) and add Sch A1 protections for Parole Board reports and victim statements. They introduce s 21A (preliminary discovery orders concerning posters of digital matter, requiring explicit consideration of the Act’s objects and privacy/safety concerns) and s 37A (orders against non-party digital intermediaries to take access prevention steps after judgment or injunction). Amendments to s 15(1a) expressly permit offers to make amends to include access prevention steps.

The legislative history shows these changes were made to keep the uniform defamation scheme fit for purpose in an environment where the vast majority of defamatory publications now occur online, often anonymously and virally, and where intermediaries that are not the original authors exercise significant practical control over continued dissemination.

Because the instruction requires every claim to be grounded in the source text, the following observations are confined to textual features that have generated, or are likely to generate, litigation.

The serious harm element (s 10A) contains a statutory direction that the judicial officer determine the issue, potentially on the pleadings and before trial. Subsection (7) expressly permits dismissal on the pleadings where particulars are insufficient. This is intended to dispose of weak claims early, but will raise questions about the boundary between “serious” and non-serious harm, especially for corporations where serious financial loss must be shown.

The public interest defence (s 27A) requires the defendant to prove both that the matter concerns an issue of public interest and that the defendant reasonably believed publication was in the public interest. The non-exhaustive list of factors in s 27A(3) includes the seriousness of the imputation, the distinction between suspicion and proof, steps to verify, whether the subject’s side of the story was sought, and the importance of freedom of expression. Courts will be required to balance these factors without any one being determinative. The identical structure appears in the revised qualified privilege defence (s 28(3)), raising parallel interpretive issues.

The defence of innocent dissemination (s 30) turns on whether the defendant “ought reasonably to have known” the matter was defamatory and whether lack of knowledge was due to negligence. The extended list of subordinate distributors in s 30(3) is expressed to be non-limiting, but its inclusion of providers of services that process, copy or distribute electronic media, operators of communications systems without effective control, and printers acting on instructions will generate disputes about the degree of editorial capacity that disqualifies a party from the defence.

Section 37A orders against non-party digital intermediaries are expressly permitted even where the intermediary has a defence to liability. The requirement to give the intermediary an opportunity to be heard (s 37A(4)) and the power to make temporary orders without notice in cases of urgency (s 37A(5)) will test procedural fairness boundaries. The breadth of “access prevention step” (defined in s 4 to include removal, blocking, disabling or otherwise preventing access by some or all persons) will raise questions about over-blocking, collateral censorship of lawful content, and compatibility with Commonwealth online safety and telecommunications legislation.

The choice of law rule in s 11, which looks to the Australian jurisdictional area with which “the harm occasioned by the publication as a whole” has its closest connection, introduces a multifactorial test that includes the plaintiff’s ordinary residence, extent of publication in each jurisdiction, extent of harm in each jurisdiction, and any other relevant matter. In cases of nationwide or global internet publication this test is likely to provoke interlocutory disputes and appeals.

Transitional provisions in Sch 1 and in the 2020 and 2025 amending Acts create complex accrued-rights questions when the same or substantially the same matter is published on multiple occasions straddling commencement dates. The legislative history records that the existing law continues to apply to pre-commencement causes of action and to certain mixed post-commencement actions.

Most practitioners still assume that the old common law of defamation applies unchanged; the Act’s statement in s 6(2) that the general law continues except to the extent the Act provides otherwise (expressly or by necessary implication) is easily overlooked. In practice almost every substantive and procedural aspect has been altered.

The concerns notice regime is a strict precondition. A document filed to commence proceedings cannot double as a concerns notice (s 12A(2)). Failure to provide reasonable further particulars within 14 days after a further particulars notice means the aggrieved person is taken never to have given a concerns notice (s 12A(5)). Courts have limited power to dispense with the elapsed-time requirement and only where limitation issues or justice otherwise require (s 12B(3)–(4)).

The serious harm element can be determined on the pleadings alone (s 10A(7)). Pleading practice that once focused on imputations must now also plead material facts capable of establishing serious harm; failure to do so risks early dismissal.

Offers to make amends must be “readily identifiable as an offer to make amends under this Division” (s 15(1)(b)) and must remain open for at least 28 days (s 15(1)(ba)). An offer limited to particular imputations must particularise them (s 15(1)(c)). These formalities are strictly applied; a defective offer will not engage the s 18 defence.

The contextual truth defence (s 24) allows the defendant to rely on imputations the plaintiff has not complained of, including those the plaintiff has complained of. This reverses the old “Polly Peck” controversy in a statutory form that still requires careful pleading.

Section 37A orders can be made against intermediaries who are not parties and who may have defences. The power is not limited to intermediaries who are liable; the only precondition is that the plaintiff has obtained judgment, a temporary injunction or a final order against the primary defendant. Intermediaries served with such applications must act quickly; the court may make temporary orders without notice if urgency is shown.

The costs indemnity presumption in s 38(2) turns on whether a settlement offer was “reasonable at the time it was made”. This requires a retrospective reasonableness assessment that can turn on factors not known to the offeree at the time. Parties who reject early offers on tactical grounds risk adverse costs consequences even if they ultimately succeed on liability but recover less than the offer.

The definition of “public document” and “proceedings of public concern” in ss 26 and 27 are extraordinarily wide, extending to learned societies, sporting associations, trade associations, public company shareholder meetings and public meetings on matters of public interest. Many organisations that do not regard themselves as “public” bodies nevertheless attract statutory protection when publishing their adjudications.

Publishers should implement a concerns notice response protocol that triggers within 24–48 hours of receipt. The protocol must identify whether the document meets the s 12A(1) criteria, decide whether to request further particulars, and prepare an offer to make amends that satisfies every mandatory element of s 15(1) while considering optional elements in s 15(1a) such as an apology or access prevention steps. The offer must be open for at least 28 days and should be expressed to be without prejudice unless the publisher elects otherwise.

Digital intermediaries should maintain detailed records of user-generated content processes, implement notice-and-takedown systems that can be evidenced as reasonable, and train staff on the innocent dissemination defence factors. When served with a s 37A application they must prepare evidence addressing the utility, technical feasibility, proportionality and collateral impact of any proposed access prevention steps.

Plaintiffs’ lawyers must ensure every concerns notice contains the location of the matter, the imputations of concern, a statement of the serious harm (or serious financial loss for corporations), and, where practicable, a copy of the matter. Particulars must be sufficient to survive a s 10A(7) pleadings-based dismissal application. Early advice should be obtained on whether the serious harm element can be established on the pleadings or will require evidence.

All parties should treat the serious harm determination as a potential knockout blow that can be sought at any time before or during trial. Applications for early determination should address the cost implications, court resources and overlap with other issues (s 10A(6)).

Organisations that issue reports, adjudications or findings (learned societies, sporting bodies, trade associations, ombudsmen, law reform bodies) should expressly invoke the relevant paragraphs of the s 27 definition of “proceedings of public concern” in their publications and ensure reports are fair and accurate.

When publishing matter that may be defamatory but is based on public documents or proceedings, publishers should retain copies of the source material and document the steps taken to verify accuracy and fairness so as to preserve the s 26 and s 27 defences.

In all cases, a contemporaneous file note recording the honest belief (where required), the steps taken to verify, the consideration given to obtaining the subject’s response, and the public interest factors considered will be powerful evidence if the s 27A or s 28 defences are engaged.

Compliance ultimately requires a cultural shift from treating every critical publication as a potential lawsuit to treating concerns notices as an opportunity to correct, clarify or apologise swiftly and thereby obtain statutory protection. Organisations that embed the Act’s objects (s 3) into their editorial and moderation policies—promoting speedy non-litigious resolution, protecting public interest discussion, and providing fair remedies only where serious harm has occurred—will be best placed to minimise both legal risk and reputational damage.