Understanding Australia’s defamation laws is no longer optional due to the significant commercial risk involved with defamation proceedings.
Media reports over the years have estimated legal costs in high-profile defamation cases to be between $25 million and $40 million. By contrast, the maximum amount generally recoverable for non-economic related loss such as reputational harm is capped at approximately $400,000. The stark gap between recoverable damages and actual legal costs, highlights the commercial risk of defending defamation and its devastating financial consequences for media publishers.
This article, written by our publishing lawyer, takes a look at the high costs of defamation litigation. We outline practical strategies to help publishers manage risk effectively.
Key Takeaways for Media Publishers
- Strong editorial processes and early legal review remain the most effective way to avoid the financial and reputational cost of litigation
- Legal costs can dwarf damages
- Publishers may be liable for users’ comments if not moderated
- Factor in pre-publication legal review and tight insurance limits
- Documented newsroom protocols need to demonstrate “reasonableness” to reduce risk
Australia's Defamation Laws
Defamation laws now apply the same standards to a Facebook user or blogger as it does to a national newspaper. The effect is that a casual comment or repost by an individual can carry the same legal consequences as an investigative feature story.
It is therefore crucial to understand both the legal elements that must be proven and the various defences available to publishers. These elements determine whether content is defamatory under Australian law, while defences provide avenues for publishers to lessen or avoid liability.
A clear grasp of both aspects is essential for effective risk management in publishing. Click here for a deeper dive into the key elements of defamation and follow this link to read about the available defences to defamation.
The Grapevine Effect
Digital content spreads with extraordinary speed through what courts have described as the “grapevine effect”. The combined effect of the viral spread of digital content and the potential liability is that both individuals and organisations now face unprecedented exposure. What may begin as a casual online post can quickly spiral into a costly legal dispute.
In Fairfax Media Publications v Voller [2021] HCA 27 (Voller), the news outlets were held liable for defamatory comments made by third parties on their Facebook posts. This decision fundamentally changed how publishers treat their engagement online as it was made clear that:
Publishers can be held responsible for defamatory comments left by users on their pages, even if they did not author or endorse them.
Outlets and page owners must actively monitor, moderate, or in some cases disable comments to manage risk. Response times and policies now form part of a publisher’s legal responsibilities.
Public Interest versus Commercial Risk
Most would agree that the public deserves to know about serious allegations, including war crimes, even if reporting reveals uncomfortable truths about powerful figures or corporations. A major criticism of Australia’s defamation laws is that they often require media outlets to spend significant time and money defending stories that serve the public interest.
While some publishers choose to proceed, many others opt for caution or silence, especially when evidence is limited, such as in cases of sexual violence. As such, the current defamation law shapes not just what is reported, but also what is left unsaid – effectively restricting public discussion on important matters of genuine concern.
Practical Risk Management Strategies
The most effective way to manage defamation risk is at the front end, before anything goes live. Courts assessing defences such as public interest or qualified privilege look closely at the steps taken before publication.
This means that ensuring structured protocols not only improves editorial accuracy but also demonstrates “reasonableness,” which is central to many legal protections.
Our guide below helps outline some practical methos to prevent exposure to litigation:
Carefully weigh the true cost of publishing
published and ensure adequate protections are in place. Some of these considerations include assessing the legal costs of potential litigation and reputational impact.
Give a comprehensive right of reply
Always provide enough detail so the person or organisation can meaningfully respond before you publish. This shows fairness and may be critical to a public interest defence. Keep a record of when and how you contacted them, even if they don’t reply. Clearly note this attempt in your article. Even a short email attempt counts as courts value the attempt itself.
Verify your sources
Keep a written record of how you checked information, especially third-party claims. Document every attempt to corroborate facts as courts will look for evidence of your diligence. If you can’t verify it, think twice about including it.
Language Use
Presenting suspicion as fact is one of the fastest ways to lose a defence. If you cannot verify it, think twice before including it. Qualify your language by specifying in the publication words such as “allegedly,” “it is claimed,” or “under investigation” instead of presenting untested material as facts. For established facts, ensure the use of clear language like “our analysis” versus “court records show” to draw the line.
Obtain a legal review for high-risk stories
For serious allegations, particularly matters involving criminal conduct or professional misconduct, seek a review from a publishing lawyer before publishing the material.
Demonstrate the public interest
Explain why the story matters to the community and how it affects more than just the individuals involved. Consider if the story important enough to justify the potential financial and legal risks.
Rely on contemporaneous records
Support your reporting with documents, transcripts, or notes created at the time. The closer in time to the event, the stronger the evidence looks in court.
Editorial Specific Standards for Professional Publishing
Adopt a code of conduct
Set clear standards for fairness, accuracy, and balance. For example, the Australian Press Council has published a Statement of Principles.
Embed legal standards into editorial practice
Develop written protocols for verification, right-of-reply, and publication decision-making. Treat them as checklists to follow before every major story goes live. It is important to document every pre-publication procedure and attempts made to ensure accuracy of the information as these documents can make or break your defence in litigation.
Train your team regularly
Keep staff updated on recent defamation cases, risk assessment, and best practice safeguards before information is published. Use real case studies to show how small missteps can lead to liability.
Insurance coverage
Insurance coverage is a crucial consideration for publishers, as most face stringent restrictions on their defamation insurance policies. Careful review and understanding of your insurance coverage is essential to ensure you are adequately protected.
Navigating the Path Forward
Success in this environment requires a proactive approach, combining legal knowledge, practical risk management, and editorial excellence. The key is balancing editorial freedom with legal prudence, ensuring that important stories reach the public while managing the financial and operational risks that defamation law inevitably creates.
For help with defamation enquiries, contact our publication lawyers.
Frequently Asked Questions
Can a company sue, and when is a business an “excluded corporation”?
A corporation generally can not sue for defamation unless it’s an excluded corporation. That means it is not a public body and either a not-for-profit or has fewer than 10 employees and that the Company is not an associated entity of another corporation. Individuals within the business may still have claims.
When will a court grant an interlocutory injunction or order a takedown?
Courts exercise caution when restraining publication before trial due. This is due to the strong emphasis that freedom of expression should be maintained to protect the public’s interest. The plaintiff typically needs a strong enough case and evidence of sufficient reputational and financial harm to meet the significant harm threshold.
Do strict limitation periods matter for cost strategy?
Yes. Defamation claims run on short deadlines (often 1 year), so early triage can avoid costly litigation.
Will an apology or correction reduce exposure?
Often apologies aren’t admissions and can mitigate damages, especially with a timely “offer to make amends.”
Is a quick takedown enough to avoid liability?
Not by itself, but fast removal, clear records, and follow-up steps can meaningfully reduce harm and costs.
