In a keynote at the Cairns Crocodiles, Australia’s leading defamation barrister Sue Chrysanthou SC took aim at what she described as “miscommunication” over where the power truly lies in defamation cases.
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Drawing on decades of experience, including acting for former soldier Heston Russell in his successful case against the ABC, representing Mercedes Corby in a five-week trial she won despite hostile media coverage, and defending journalist Lisa Wilkinson in the high-profile Bruce Lehrmann defamation proceedings, Chrysanthou delivered a sharp, sometimes scathing account of how legal reforms, media lobbying and platform power have tilted Australia’s defamation landscape in favour of publishers and platforms, not plaintiffs.
“What you’re being told and what’s being reported about defamation laws in this country is actually quite ridiculous,” she said. “Every single legislative change that has been made since 1974 has all been in one direction. It has been against plaintiffs and in favour of the media”.
The Myth of ‘Plaintiff Power’
Chrysanthou firmly rejected the widely held belief that Australia’s defamation laws unfairly favour wealthy plaintiffs. According to her, the idea that litigation is dominated by cashed-up public figures weaponising the courts to silence criticism is a myth, one largely perpetuated by the media.
“The media say there’s a chilling effect… because rich people sue us for defamation. That’s just not true,” she said. “Anyone can sue for defamation”.
Far from being a tool of the powerful, Chrysanthou argued that defamation law is often the only avenue for ordinary people to reclaim their reputations. “The majority of people who sue for defamation are people you’ve never heard of and people who don’t have any money,” she explained. “And although defamation litigation is very expensive, we have many, many, many people who will act no win, no fee or act pro bono.”
She also addressed the recurring criticism levelled at defamation lawyers themselves, often labelled opportunists or “ambulance chasers.” With a mix of sarcasm and conviction, Chrysanthou noted: “They will act for people for free, against us. How dare they, right?”
But she made clear that defamation lawyers, like their counterparts in personal injury or employment law, are motivated by principles of access to justice. “In every area of law… lawyers act for people because we believe in access to justice, particularly when someone’s having their life destroyed”.
Rather than seeing plaintiffs’ lawyers as a threat to press freedom, Chrysanthou urged a reframing: they are, she implied, often the only defence available to those wrongfully maligned in a digital age where misinformation spreads fast, and lingers indefinitely.
A System Stacked Against the Individual
According to Chrysanthou, recent reforms to defamation law have steadily eroded individuals’ ability to meaningfully defend their reputations. Rather than rebalancing power, she argued, these legal changes have overwhelmingly favoured media outlets and tech platforms, often at the cost of justice for everyday Australians.
One of the most significant limitations, she said, is the cap on damages. “It started off at $250 [thousand], it’s now been indexed to $478 [thousand],” she explained. “Nowhere else do we have such a low cap. I mean, there’s a cap in Texas, but it’s $25 million US.”
The result, she implied, is that no matter how damaging or untrue a statement may be, plaintiffs in Australia can only recover a fraction of what they might in comparable jurisdictions.
She also criticised the absence of exemplary or punitive damages, a type of financial penalty awarded not just to compensate the victim, but to punish especially egregious or malicious conduct and deter others from doing the same. In most other common law countries, this form of damages is available when defamation is proven to be deliberate and harmful.
“If someone defames you in a malicious and direct and deliberate way… in every other country in the Commonwealth world, you get punitive damages,” she said. “Not here, folks. No punitive damages here for us.”
Without that option, Chrysanthou suggested, Australia’s defamation system lacks a meaningful deterrent for bad actors, especially those with deep pockets or large platforms.
On top of that, plaintiffs now face the additional hurdle of proving “serious harm” to their reputation, a requirement introduced in 2021. While Chrysanthou noted that this may not be difficult in high-profile media cases, it is nonetheless causing legitimate claims to fall over. “The serious harm aspect… is causing a loss of litigation,” she said.
Even the timeline for seeking justice has narrowed. Under Australia’s current rules, if a defamatory post is published online and not acted upon within 12 months, the window to sue may close, even if the content is later resurfaced or goes viral again.
“If it’s on the internet and you don’t sue in the first year, and then it gets put up again and is refreshed, you don’t get a new one-year limitation period,” she said. “Bad luck. You should have sued in the first year”.
In Chrysanthou’s view, these changes haven’t modernised the law, they’ve simply made it harder for victims of reputational damage to seek redress.
Who’s Really Behind the Laws?
For Chrysanthou, the problem isn’t just with how defamation laws are written, it’s who gets to influence them. She argued that Australia’s legislative agenda around defamation and privacy has been disproportionately shaped by the media industry, particularly powerful publishing groups like the Your Right to Know coalition, a lobby group made up of major Australian media companies.
Chrysanthou said that while media voices are valid and important in law reform discussions, they have become the dominant, and sometimes the only, ones the government listens to. Lawyers working on the front lines of defamation, she suggested, are often ignored.
“These are the people who have the power to control legislative change when it comes to defamation, when it comes to privacy, when it comes to reputation… At the moment, they’re the only ones being heard.”
She shared an example of submitting a formal paper outlining concerns about proposed reforms, co-signed by two other senior barristers, including the then-President of the Bar Association and her husband who was much more senior than her. Despite the credibility of the contributors, only she was singled out in the media. “I was called a whinger… the two male Senior Counsel who also signed the paper… didn’t get a mention. I’m the only one whinging about defamation laws apparently”.
The episode, she suggested, is emblematic of a broader issue: when lawyers raise red flags about laws that could further limit an individual’s ability to defend their reputation, those concerns are often dismissed as self-interest, especially, she hinted, when voiced by women.
Digital Age, Permanent Consequences
A key theme running through Chrysanthou’s keynote was the permanent, often uncontrollable nature of reputational damage in the digital age. Unlike the past, when a defamatory article might appear in one newspaper, be read once, and quickly forgotten, today’s internet ensures that damaging content lingers, spreads and resurfaces indefinitely.
“If you’re defamed, you’re defamed forever. There’s no right to be forgotten. It’s on the internet… and it’s there indefinitely”.
She stressed that it’s no longer just established media companies doing the damage. With social media and digital publishing tools in everyone’s hands, defamation can come from anywhere, a tweet, a blog post, a TikTok video or increasingly, even from non-human sources. “Some of my latest briefs are people being defamed by AI,” she said.
“You put someone’s name AI, and the result that comes out is shocking. And who do you blame for this? This is what we’re trying to figure out”.
In one current case, she revealed, her client is considering legal action against Meta after the company’s AI-generated results allegedly labelled them a cult. “Whenever you type in anything about them, they’re called a cult. They don’t think they’re a cult.”
Beyond authorship, even understanding whether something is defamatory has become a challenge. Chrysanthou explained that the rise of internet slang, emojis and coded language is creating new hurdles in courtrooms. “I’ve spent many hours looking at emojis thinking, well, I think that’s not complimentary,” she said, noting that deciphering intent and meaning isn’t always straightforward, especially when most judges are “over the age of 60.”
For defamation lawyers, the legal questions aren’t just about falsehood and harm anymore, they’re about algorithms, anonymity, and interpretation in a constantly shifting online culture.
In America, Reputation Still Has a Price Tag
To further underscore what she sees as Australia’s diminishing protections for individuals, Chrysanthou turned to comparisons with the United States, a country often criticised by Australian media for having defamation laws too heavily weighted in favour of free speech. But in her view, the American system, for all its flaws, offers far stronger remedies to those who have genuinely been wronged.
She listed a series of major US defamation and privacy cases where plaintiffs received massive payouts, the kind of compensation she said would be unimaginable under Australian law.
There was Hulk Hogan, who sued Gawker over the release of a sex tape and was initially awarded $140 million USD before settling for $31 million. Johnny Depp famously sued his former partner Amber Heard and walked away with more than $10 million in damages. The Sandy Hook families were awarded a staggering $1.44 billion USD after conspiracy theorist Alex Jones falsely claimed the massacre was a hoax staged by actors as a plot to seize America’s guns.
By contrast, Chrysanthou pointed out, Australia’s largest ever defamation payout went to actor Geoffrey Rush, and even that $2.98 million sum included only two years of lost income. “The article was in 2017 and the case was in 2018,” she noted, “and his first movie just came out this year, but he was only awarded two years of lost income.”
To illustrate what she sees as the harsh limitations of Australia’s defamation system, Chrysanthou pointed to one of her own cases, that of former Special Forces commander Heston Russell who was accused of war crimes by the ABC.
“He was accused of murder. He was accused of hog-tying this dude who wouldn’t fit into a helicopter, and shooting him because he wouldn’t fit,” she explained.
Chrysanthou compared that case to a similar one in the United States involving U.S. Navy veteran Zachary Young. Young had been falsely accused by CNN of charging Afghan nationals $10,000 each for safe passage during America’s withdrawal from Kabul. “Zachary Young got $5 million plus some unknown amount,” she said. “Heston Russell got $400,000”.
What stood out to Chrysanthou wasn’t just the disparity in compensation, but the difference in how the two media organisations responded. “CNN apologised to Zachary Young before the case was started. ABC never apologised to Heston,” she noted.
“In my view, [Heston’s] defamation was much worse. There was never any apology. And look at the difference in the damages awards,” she said. “Let’s be a bit more serious about how draconian defamation laws are.”
The comparison, she suggested, revealed how undervalued reputational harm remains in Australia, even in cases involving serious and deeply personal allegations.
Despite the legal complexity and high-profile examples throughout her keynote, Chrysanthou made clear that the issue isn’t whether the media should be free to report, but whether individuals should have any real means of redress when false or damaging claims are made.
In her view, Australia’s current system too often favours institutional power, leaving ordinary people with little protection against misinformation, whether it’s published by a media outlet, shared on social media or even generated by artificial intelligence.
For Chrysanthou, the most powerful force in any defamation case isn’t legal strategy or courtroom theatrics, it’s truth. And in a media landscape that she believes is increasingly shaped by speed, sensationalism and platform algorithms, she urged the audience to remember that protecting reputations from falsehood isn’t just a legal issue, it’s a societal one.
Her final message was a challenge to lawmakers, journalists, and citizens alike: if public discourse is to have integrity, then telling the truth must carry more weight than telling a story, and the law should reflect that.
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