July 21, 2025
Introduction
Social media offers individuals and businesses a powerful platform to communicate and engage with others. However, when false and damaging statements are made online, the consequences can be swift and serious. In New South Wales, defamation law offers protection against reputational harm caused by social media content.
This article outlines how defamation is identified under NSW law, what legal steps can be taken to remove harmful content, and how to seek compensation for damages.
What Is Defamation Under NSW Law?
Defamation occurs when someone publishes material that harms another person’s reputation. In the context of social media, this can include posts, comments, images, or videos shared on platforms such as Facebook, Instagram, TikTok, X (formerly Twitter), or LinkedIn.
To succeed in a defamation claim in NSW, the following elements must generally be established:
- The content was published to a third party
- The content identifies or is about the claimant
- The content is defamatory, meaning it harms the claimant’s reputation in the eyes of others
The Defamation Act 2005 (NSW) and its 2021 amendments provide the legal framework for defamation claims. A serious harm threshold must now be met – the publication must have caused, or be likely to cause, serious harm to the claimant’s reputation.
Legal Steps to Remove Defamatory Content
When defamatory material is published on social media, the first priority is usually to have it removed. Several legal options are available:
1. Concerns Notice
Before commencing defamation proceedings, a concerns notice must be issued to the publisher of the material. This notice outlines the defamatory imputations and provides an opportunity for the publisher to respond or make amends.
2. Requests to Platforms
In some cases, the content may also breach a platform’s terms of service. A formal request can be made to the platform to remove the material, supported by a copy of the concerns notice.
3. Injunctions
If the content is particularly harmful or urgent, it may be necessary to seek an injunction from the court to prevent further publication or dissemination.
It’s important to act promptly, as there is generally a 12-month limitation period to bring a defamation claim from the date of publication.
Seeking Compensation for Reputational Harm
If the dispute cannot be resolved informally, legal proceedings can be initiated in the District Court or Supreme Court of NSW. Remedies available include:
- Damages for non-economic loss, including hurt feelings and reputational damage
- Aggravated damages, where the conduct of the publisher was particularly harmful
- Economic loss, if the defamation has caused measurable financial harm
- Costs orders, requiring the publisher to cover legal expenses
Where appropriate, a court may also make orders for retraction or apology. In all cases, legal representation is crucial to assess the viability of a claim and maximise the chance of a successful outcome.
Conclusion
Defamation law is highly technical, and recent reforms in NSW have introduced new hurdles for claimants, including the serious harm threshold and mandatory concerns notice process. At Maguire & McInerney, we help individuals and businesses navigate defamation claims with a clear legal strategy and strong representation.
Whether you’re seeking the removal of content or pursuing damages, our team provides advice tailored to your specific circumstances and goals.
