The legal framework
Uniform defamation law was reformed in 2021 to introduce a serious harm element and a public interest defence. Australia is unusual in having a statutory eSafety Commissioner with power to order removal of cyberbullying material, image-based abuse and seriously harmful adult cyber-abuse.
Key points
| Serious harm | Required since the 2021 reforms |
|---|---|
| Public interest defence | Introduced in 2021, modelled on the UK |
| Concerns notice | Mandatory pre-action step before suing |
| eSafety Commissioner | Can order removal within 24 hours for image-based abuse and cyberbullying, and fine non-compliant services |
| Adult cyber-abuse | Separate scheme under the Online Safety Act 2021 |
| Publisher liability | Courts have held page administrators responsible for third-party comments, prompting further reform |
| Limitation | One year from publication |
| Online Safety Act | The eSafety Commissioner can order removal of seriously harmful content |
In practice
- Capture evidence first: full screenshots with URL, date and surrounding context, before anything is deleted.
- Report to the platform and keep the reference number and the outcome.
- Then use the legal route — the order matters, because platforms act faster than courts.
- Do not respond in kind: your own posts become evidence too.
- Serve a concerns notice first; proceedings issued without one will be stayed.
- Use the eSafety Commissioner for adult cyber abuse: it is free and quicker than court.
Cost and coverage
eSafety complaints are free and fast; defamation litigation is costly.
Recent changes
The eSafety scheme is one of the few in the world where an individual can obtain a binding removal order without going to court.
Where to go
- eSafety Commissioner — reporting portal for image-based abuse, cyberbullying and adult cyber-abuse.
- Police for threats and stalking.
- Legal aid and community legal centres for defamation advice.
Worth knowing
Report to eSafety before considering legal action. Removal orders are usually obtained within days, and the evidence gathered supports any later claim. The concerns notice is now compulsory. It must set out the imputations and give the publisher a period to make an offer to make amends.
Official sources and links
- Federal Register of Legislation — Commonwealth law as made and in force
- Services Australia — government services and payments