Defamation and malicious falsehood do overlap in the court of law. While defamation is more widely known and actioned, malicious falsehood is an alternative. In this article, we discuss both defamation and malicious falsehood, how they compare and how our dispute lawyers can help.


The law of defamation

The law of defamation, whilst complex (at times, needlessly so), is generally known and understood.

In Australia, the States have codified defamation law into statutes. While these are not completely uniform, for the most part they align. They contain limitations on the right of action for defamation. In South Australia, the relevant legislation is the Defamation Act, 2005. Some of the limitations imposed by the Act are as follows:

Defamation time limit

As per the defamation time limit, the defamed person only has a year from the publication of the defamation in which to sue. A court can extend that year by 2 years, and 2 years only, if it is convinced that it wasn’t reasonable to have sued within the first year. Time limits like this apply to most legal actions.

After 3 years from the publication date, that’s it. No claim can be made. (Bad luck if you find out someone said or wrote something 37 months ago that’s made your life a living hell.)


Any company larger than one with 10 employees or more cannot sue for defamation. The dead can’t sue, or be sued.


There are a number of substantive and technical defamation defences.

Damages for defamation

There are limits on the defamation damages that a court can award.

Malicious falsehood as an alternative to defamation

As mentioned above, defamation and malicious falsehood are similar in nature, which means malicious falsehood may make a good alternative to defamation where action for defamation is not possible.

The law of malicious falsehood

Where a malicious act or false statements have harmed your reputation, there may be an alternative legal remedy to defamation: the old law of malicious falsehood. So what are some of the criteria of an action for malicious falsehood? And how do defamation and malicious falsehood compare?

Actual Economic Damage

There is some overlap between an action for defamation and malicious falsehood – essentially, malicious or injurious falsehood relates to proprietary and commercial interests rather than personal reputation, although it can extend to damage to professional reputation. Actual economic damage has been the hallmark of the action, but the precise elements of it are still not fully formed and settled.

Intent to Harm

Unlike with defamation, the plaintiff has to prove that the falsehood is a falsehood, and that the false statements were made with intent to harm. Those elements usually make it a harder case to prove than defamation. But if defamation, for one of the reasons identified above, is not available, then this alternative remedy should be considered.

Defamation and malicious falsehood lawyers

For further information on the difference between defamation and malicious falsehood, please contact our defamation lawyers on 8362 6400 or email Peter Jakobsen. 

Please feel free to discuss both types of action if you have been on the receiving end of unfair, adverse comments on your personal or business life. We are here to help you determine if malicious falsehood or defamation is required. Join our mailing list to receive updates and advice on current issues.

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  • Peter Jakobsen

    About the author: Peter Jakobsen

    Peter has a wealth of experience in many areas of the law but practises primarily in the areas of civil and commercial litigation including employment matters, negligence, defamation, leasing and contractual disputes and debt collection.

    Peter is a skilled and clever advocate that brings all of his intelligence and significant Court room experience to each and every matter to achieve excellent results for his clients.

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