THE defamation world is rife with “shoot from the hip” attitudes. Seen a post on Facebook that you don’t like? Just fire off a concerns notice and hope something comes of it. That seems to be the attitude adopted by many prospective plaintiffs in this space – but is that really consistent with the intended operation of defamation law?
The uniform defamation laws in Australia were recently amended to force plaintiffs to consider the merits of their claims before taking them to trial.
It seems as though those amendments haven’t quite gone far enough to prevent prospective plaintiffs from firing off unjustified cease and desist letters or concerns notices to undeserving recipients, or worse, continuing on to commence baseless proceedings thereafter in the hope that they might extract a quick settlement offer.
By contrast, the law governing intellectual property rights – particularly patents, trade marks and designs – contains a well-established statutory mechanism to deter misuse of legal threats relating to litigation: the unjustified threats regime. A prospective plaintiff in an intellectual property dispute has genuine cause to think twice before threatening litigation.
Should this be the case for defamation too?
The current defamation landscape
Pre-action correspondence often forms the cornerstone of strategic legal positioning in defamation law. An aggressive cease and desist letter or concerns notice may be sufficient to secure removal of a publication, elicit an apology, or even recover payment of some damages – irrespective of the strength of the underlying claim.
Given the explosion of defamation claims in the last decade – mostly arising from minor social media complaints – amendments were introduced to require a party to establish that they have suffered “serious harm” as an element of the cause of action.
This amendment was intended to limit the number of unmeritorious defamation claims making their way into the court system.
In practical terms, the element of serious harm must be pleaded in the statement of claim. If not, or if done poorly, a defendant can bring an interlocutory application for early determination of the serious harm element. If successful in that application, a defendant can defeat the plaintiff’s defamation claim before trial.
However, the reality is that much work must be performed prior to a defendant making an interlocutory application of that nature.
Pleadings are to be exchanged, disclosure is to be performed, and often the parties will mediate prior to a defendant turning to an application for early determination.
This of course means that a defendant is required to incur considerable costs before invoking the new powers conferred by the Defamation Act 2005 (Qld).
A defendant with a bona fide defence to a defamation claim is therefore left in the unenviable position of needing to incur the costs of taking several interlocutory steps before bringing the matter before the court; and, even then, if wholly successful in making the application for early determination of serious harm, they are unlikely to recover the full amount of the costs outlaid in achieving that result.
Such a landscape provides a comfortable strategic foundation for a plaintiff to act aggressively, commence proceedings without any great immediate consequence and push for a settlement involving some kind of payment made by the defendant on a commercial basis solely for the sake of avoiding ongoing litigation, irrespective of the quality of the plaintiff’s claim.
If they’ve got the courage (and the resources) to deploy such a strategy, why wouldn’t a plaintiff roll the dice in those circumstances?
The unjustified threats regime
The unjustified threats regime exists in the Federal legislation applicable to intellectual property matters concerning patents1, trade marks2, copyright3 and designs4.
It provides a mechanism for recipients of threats of infringement proceedings to seek relief – including declarations, injunctions, and damages – if the threats are later found to be unjustified. That is, if the allegedly infringing conduct does not, in fact, actually infringe a valid and enforceable right.
This framework strikes a deliberate balance: while preserving the ability of an intellectual property rights holder to enforce a valid right, it penalises those who issue threats without reasonable foundation.
This balance is strikingly absent from defamation actions.
Why the unjustified threats regime should be deployed in defamation actions
The recent amendments require a party to issue a mandatory concerns notice prior to commencing defamations proceedings, but the merits of the claim underpinning the concerns notice are not of any immediate consequence to the prospective plaintiff.
Whilst a plaintiff is of course always exposed to the risk of an adverse costs order, the reality is that such a risk does not crystalise in a practical sense until trial (or, until a defendant makes an application for early determination of serious harm).
So, in practice, the amendments to the Defamation Act have probably put a roadblock on matters making their way to trial.
But shouldn’t we put a roadblock on matters making it to court to begin with, by forcing a party to genuinely consider whether their claim is justified before firing off a concerns notice and filing a pleading?
When considered from a defendant’s perspective, the answer to that question is a resounding “yes”.
As the recipient of a concerns notice, there aren’t many tools available to you if the intention is to defend the claim and maintain your innocence.
Taking such an approach is never an attractive proposition for a defendant when factoring in the time, stress and costs with advancing a positive defence.
At the moment, the only real “carrot” available to an innocent defendant, is to press the risk that the plaintiff might have to pay an award of costs to the defendant if unsuccessful at trial.
Such a reward is not so attractive when regard is had to the actual amount of costs recovered by defendants, which almost always leaves them out of pocket in some respect, even if wholly successful in defending the claim at trial.
This is compounded by the great difficulty which a defendant is faced with when seeking security for costs against a plaintiff in a defamation claim.
All things considered, it wouldn’t be unreasonable for a defendant to ask: “where is the justice in that?”.
About a decade ago, there was a pilot program introduced in the United Kingdom, whereby parties to defamations proceedings were required to submit detailed estimates of ongoing litigation costs for approval by the courts. This mechanism promoted transparency and aimed to ensure that the costs to be incurred by the parties were proportionate to the value of the plaintiff’s claim.
Whilst this program might alleviate some pain for a defendant when it comes to recovering costs, no such program exists for defamation actions in Australia, and in any event, the program does not necessarily solve the problem of plaintiffs racing off to court.
The result is that there is a real incentive for an innocent defendant to just offer up a quick settlement on a commercial basis and be done with it.
The problem being that innocent defendants can end up being taken advantage of by trigger-happy plaintiffs – which is of course not the reason this legislation exists.
Introducing the unjustified threats regime to defamation actions would add an arrow to the defendant’s quiver – it would enliven a very real risk of declarations, injunctions, and perhaps most importantly, damages, being awarded against the plaintiff.
Adopting this approach could be criticised for the reason that it would likely be very difficult to ascertain the measure of damage which a defendant suffers by reason of an unjustified threat of defamation action.
Could it be the value of the defendant’s legal costs on an indemnity basis? Could it be an award of damages for the reputational damage caused to the defendant by reason of the false allegations? Perhaps a mix of those things, to be determined at the discretion of the court based on the conduct of the plaintiff.
Whatever the relief might ultimately be, the desired result would be achieved: people would no doubt think very carefully before commencing baseless defamation proceedings. Isn’t that really what we want to achieve?
This article was first published in the 2025 Proctor Annual print edition, published in October 2025. To submit a Perspectives piece for inclusion in the weekly Proctor updates, email the editor. The best of the Perspectives pieces published during the year are considered for the annual print edition.
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