HAS MR GREENWICH PROVED THAT PUBLICATION OF THE PRIMARY TWEET CAUSED OR IS LIKELY TO CAUSE SERIOUS HARM TO HIS REPUTATION?
The law
159 Section 10A(1) of the Act provides: "It is an element (the serious harm element) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person".
160 Section 1 of the Defamation Act 2013 (UK) is similar and relevantly provides: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant".
161 I mention the UK provision because a number of the English cases are useful in interpreting the Australian equivalents. See, by way of example only, Selkirk v Hocking (No 2) [2023] FCA 1085; and Selkirk v Wyatt (2024) 302 FCR 541.
162 Section 10A(1) of the Act places the onus upon an applicant (here, Mr Greenwich) to prove as a necessary element of the cause of action that the relevant publication has caused or is likely to cause serious harm to his reputation. See Newman v Whittington [2022] NSWSC 249 at [47] (Sackar J).
163 The question of whether a statement has caused or is likely to cause serious reputational harm is a matter of fact, which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. As Lord Sumption (with whom Lords Kerr, Wilson, Hodge and Briggs JJSC agreed) explained in Lachaux v Independent Print Ltd [2020] AC 612 at 623–4 [14]:
Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it "has caused or is likely to cause" harm which is "serious". The reference to a situation where the statement "has caused" serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is "likely" to be caused. In this context, the phrase naturally refers to probable future harm. Ms Page QC, who argued Mr Lachaux's case with conspicuous skill and learning, challenged this. She submitted that "likely to cause" was a synonym for the inherent tendency which gives rise to the presumption of damage at common law. It meant, she said,
