Internet defamation can destroy years of hard work in a matter of hours. A false Google review, a misleading Facebook post, or a viral TikTok video making untrue accusations can spread faster than you can respond. If you are dealing with damaging online content right now, you are likely feeling a mix of anger, frustration, and uncertainty about what you can actually do.
Fortunately, Australian defamation law does apply to online content, and you have real options. However, the process has specific requirements you need to follow, and time limits apply. Victoria serves as the default jurisdiction for this analysis. While Victoria enacted Stage 2 reforms on 11 September 2024, these changes have not yet been implemented uniformly across Australia, with jurisdictions like Western Australia and the Northern Territory yet to adopt the same commencement dates.
How Internet Defamation Works Under Australian Law
The Defamation Act 2005 (Vic) treats online publications the same as traditional media. A defamatory Facebook post is treated no differently than a defamatory newspaper article. The same legal tests apply.
For material to be defamatory, three things must be present:
- The content must be published to at least one other person (posting online almost always satisfies this)
- The content must identify you or your business (either directly or by implication)
- The content must carry a meaning that harms your reputation, makes people think less of you, or causes them to avoid you
Since the 2021 reforms, there is an additional hurdle. You must show the publication has caused, or is likely to cause, "serious harm" to your reputation. For businesses, this means serious financial loss. This threshold exists to filter out trivial complaints, but genuine defamation cases typically clear it without difficulty.
You do not need to prove the person intended to harm you. Intent is irrelevant. What matters is whether the publication is defamatory and whether it reached other people.
Understanding Damages: Economic vs Non-Economic Loss
When a court finds that defamation has occurred, it may award damages. These are categorised into economic and non-economic loss. Economic loss represents the quantifiable financial damage you or your business has suffered, such as loss of specific contracts or a measurable drop in revenue. Non-economic loss is intended to compensate for the intangible harm to your reputation and the personal distress or hurt feelings caused by the publication.
In Victoria, the law imposes a statutory cap on the amount that can be awarded for non-economic damages. This cap is currently set at $459,000. This limit ensures that awards for reputational damage remain proportionate, though there is no such cap on proven economic losses.
Can Your Business Sue for Defamation?
This is where many business owners hit an unexpected obstacle. Under Australian law, corporations with 10 or more employees generally cannot sue for defamation. Only "excluded corporations" can bring claims, which means:
- Not-for-profit organisations
- Companies with fewer than 10 employees that are not related to another corporation
Sole traders and partnerships can sue because the claim is brought by the individual owner. Directors and employees can also sue if the defamatory material targets them personally, not just the business.
If your company is too large to qualify, other options exist. Misleading or deceptive conduct claims under the Australian Consumer Law may apply. Platform takedown requests, negotiated settlements, and right of reply strategies can also work. The defamation pathway is not the only pathway.
Common Online Defamation Scenarios
Most internet defamation disputes follow predictable patterns. Understanding where yours fits helps you assess your options.
Fake or malicious reviews: A review that states false facts, rather than just negative opinions, can be defamatory. "The food was terrible" is an opinion and generally protected. "This restaurant gave me food poisoning and covered it up" states facts that, if false, may be defamatory. Tracking down anonymous reviewers is possible through preliminary discovery applications.
Social media pile-ons: A single accusatory post can snowball into dozens of comments and shares. Each republication is technically a separate act of publication. The original poster and those who share the content may all have liability.
Competitor attacks: False statements about your business made by competitors can constitute both defamation and trade libel. These cases often have strong damages claims because the financial harm is direct and provable.
Workplace disputes gone public: Former employees or contractors sometimes air grievances on social media. If they make false factual statements, as opposed to expressing opinions, defamation law applies.
Defences the Publisher Might Raise
Before you proceed, consider what defences the other party might have. The main ones are:
- Justification (truth): If the statements are substantially true, that is a complete defence
- Honest opinion: Genuine opinions based on stated facts are protected
- Qualified privilege: Statements made in certain circumstances with a duty or interest may be protected
- Public interest: A 2021 addition protecting reasonable publications on matters of public interest
- Innocent dissemination: Platforms and intermediaries have specific protections under the 2024 reforms
The honest opinion defence is particularly relevant for online reviews. A reviewer who clearly expresses a subjective view, such as "I thought the service was rude," is better protected than one who states false facts, such as "They charged my card twice and refused to refund me."
The Concerns Notice: Your First Legal Step
Since the 2021 reforms, you cannot start defamation proceedings without first serving a concerns notice. This is a mandatory requirement. If you skip this step, a court will likely dismiss your claim.
A valid concerns notice must include:
- Details of the publication (where, when, and what was said)
- The defamatory meanings, or imputations, you say the material carries
- How the publication has caused or is likely to cause you serious harm
The recipient then has 28 days to respond, typically with an offer to make amends. This might include a correction, apology, or compensation. Many disputes resolve at this stage without court proceedings.
The concerns notice process also preserves your position on limitation periods. You have only one year from the date of publication to commence proceedings, though courts can extend this to three years in specific cases.
What About the Platforms?
The 2024 Stage 2 reforms changed how platforms like Facebook, Google, and X are treated. Research into digital defamation trends shows platforms are increasingly drawn into these disputes. The legal landscape for these intermediaries has been heavily influenced by the High Court.
In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, the court established that owners of social media pages could be considered publishers of defamatory comments made by third parties on those pages. Conversely, in Google LLC v Defteros [2022] HCA 27, the High Court clarified that a search engine is not necessarily a publisher of defamatory material simply because it provides a hyperlink to a third-party website in its search results.
Under the new reforms, digital intermediaries now have specific defences if they maintain accessible complaints processes and remove content within 7 days of a valid complaint. While platforms are becoming harder to sue directly, they can still be ordered by courts to take down content or prevent access. The person who originally posted the defamatory material remains fully liable.
Practical Steps You Can Take Now
While you consider your legal options, take these immediate steps:
Document everything. Screenshot the content with timestamps. Save URLs. Record view counts and engagement metrics if visible. This evidence may disappear if the post is deleted.
Use platform reporting tools. Most platforms have processes for reporting defamatory content. Success rates vary, but it costs nothing and sometimes works quickly.
Do not engage publicly. Responding to defamatory posts often makes things worse. It can extend the dispute, create more content for others to share, and potentially affect your legal position.
Get legal advice early. The one-year limitation period is strict. Waiting too long can extinguish your rights entirely. A quick assessment from a defamation lawyer can tell you whether you have a viable claim and what it might cost to pursue.
This is general information only, not legal advice. You should obtain independent legal advice about your specific circumstances.
