Abstract/Summary

In Australia, pursuant to Section 9 of the Defamation Act 2005, companies trading for profit with ten or more employees are prohibited from bringing an action in defamation. In June 2018, the New South Wales government published a Statutory Review of the Act. Although it is of the view that the balance struck by Section 9 continues to be appropriate, it recognised the importance of corporate reputation, and has recommended a further discrete review of the provision. One of the persuading factors for making this recommendation is that Australia’s approach does not correspond with the treatment of corporate reputation in other similar jurisdictions, including the UK. This is ironic, as prior to the enactment of the Defamation Act 2013, the UK very nearly followed Australia by prohibiting companies from bringing a claim in defamation. Rather than following the Australian example, the day before the 2013 Act received Royal Assent, Parliament introduced a qualification for the Section 1(1) serious harm requirement for bodies trading for profit; to meet the serious harm threshold, under section 1(2), they need to demonstrate actual or likely serious financial loss. Thus, this paper critically analyses the efficacy of the section 9 prohibition, and the Section 1(2) serious financial loss requirement. Ultimately, it argues that neither are fit for purpose, and that a cultural shift is needed to better protect companies of all sizes.