For many Australian small businesses, your reputation is one of your biggest assets.
So when someone posts a negative review, publishes a social media rant, or sends emails accusing your business of misconduct, it can feel personal - and it can also hit your revenue, team morale and customer trust.
Not every harsh comment is unlawful. But some statements can cross the line into defamatory territory, and there are practical (and lawful) steps you can take to respond quickly, preserve your options, and reduce the chance of the issue escalating.
Below, we break down how defamation works in Australia in a small business context, what to do first, when to seek takedowns, and what legal options you may have if the damage is serious.
What Counts As “Defamatory” About Your Business In Australia?
In Australia, a statement is generally considered defamatory if it:
- Is published (shared with at least one other person - this includes online posts, reviews, emails, group chats, and even some internal workplace communications),
- Identifies your business (directly or indirectly), and
- Causes (or is likely to cause) reputational harm by lowering others’ opinion of your business, exposing it to ridicule, or causing people to avoid dealing with you.
Since the 2021 reforms adopted across most Australian states and territories, there is also a key concept you’ll hear a lot: serious harm.
In many cases, the person (or business) bringing a defamation claim must show the publication has caused, or is likely to cause, serious harm to reputation. For SMEs, that often ties to real-world consequences like losing clients, contracts, referrals, staff retention, or dealing with ongoing reputational fallout.
Common Examples Of Potentially Defamatory Statements About SMEs
Not all bad reviews are defamatory. But the following types of claims can raise red flags (depending on context and evidence):
- “They stole my money” / “This business is a scam.”
- “They forged documents” / “They committed fraud.”
- “They are unsafe” / “They break the law” (without a factual basis).
- False allegations of discrimination, harassment, or criminal conduct against the business or its leaders.
- Posts suggesting you are unlicensed or not qualified when you are properly authorised.
What About “It’s Just My Opinion”?
People often assume they can say anything as long as they call it an opinion.
But in defamation law, an “opinion” isn’t automatically a free pass. Whether a statement is defamatory can depend on:
- how it’s phrased (is it presented as fact?),
- the context (what would an ordinary reader think it means?), and
- whether it implies undisclosed facts (for example, “I think they’re corrupt” can imply serious misconduct).
There are also legal “defences” that can apply to defamatory material - such as truth (justification), honest opinion, qualified privilege, and public interest - and these can be highly fact-specific.
Can A Business Sue For Defamation?
Sometimes - but not always.
In Australia, companies generally cannot sue for defamation unless they fall within a limited exception (often called an “excluded corporation”). In broad terms, this typically covers:
- not-for-profit organisations, and
- small businesses with fewer than 10 employees (and that are not related to another corporation).
Even where a company can’t sue (or a defamation claim isn’t the best fit), individuals involved in the business (like directors) may have their own options depending on what was published and who it identifies. There may also be other legal pathways (for example, issues that overlap with consumer law, confidentiality, or competitor conduct).
First Response Checklist: What To Do As Soon As You See A Defamatory Statement
When something defamatory is published, the first few hours and days matter. Your goal is to stay calm, preserve evidence, and avoid accidentally making things worse.
1. Preserve Evidence Properly (Before It’s Deleted)
Start by collecting evidence in a way that is useful if you need to escalate later. This can include:
- screenshots (including the URL, username, date/time, and comments),
- screen recordings (scrolling to show surrounding context),
- copies of emails, messages or letters, and
- records of any customer cancellations, refund demands, or lost opportunities linked to the publication.
If the material is on a platform where posts change quickly (comments get edited, threads move), consider saving the entire page content and capturing the surrounding discussion.
2. Don’t Rush Into A Public Fight
It’s tempting to jump straight into the comments and “set the record straight”. In practice, a heated response can:
- draw more attention to the allegation (the “Streisand effect”),
- risk you disclosing private customer/staff details, or
- create fresh legal risk if you respond with accusations of your own.
A good rule: respond with facts (if you respond at all), stay professional, and avoid naming individuals or sharing private details.
3. Identify The Publisher And The Reach
Ask a few practical questions:
- Who posted it (customer, former staff member, competitor, anonymous account)?
- Where was it posted (Google review, Facebook group, LinkedIn, industry forum, email blast)?
- How widely has it spread (shares, comments, reposts, media pickup)?
- Is it still actively being published (ongoing reposts, repeated emails, multiple accounts)?
This helps you decide whether you need a quick takedown, a formal legal step, or a measured reputation strategy.
4. Check Whether The Statement Might Also Raise Other Legal Issues
Defamation is only one part of the picture. Depending on what’s being said and who is saying it, you might also be dealing with:
- misleading claims about your products/services (particularly if a competitor is involved),
- breach of confidentiality (for example, leaking internal information or client data), or
- harassment or threats.
Where the statements are tied to market-facing claims that mislead customers, Australian Consumer Law concepts can be relevant - including the elements of misleading or deceptive conduct.
Practical Takedown And “Damage Control” Options (Before Going Legal)
Often, the fastest way to reduce harm is to focus on limiting the ongoing publication and managing your public-facing response.
Many online platforms have policies against:
- false statements presented as fact,
- harassment and bullying,
- impersonation, or
- publishing private information (like addresses, phone numbers, or internal documents).
Even if the platform won’t assess whether something is legally defamatory, you may still be able to have it removed for breaching platform rules.
When you lodge a report, keep it clear and evidence-based. Focus on what is false, what policy is breached, and attach screenshots.
Send A Direct “Stop And Remove” Request
If you know who posted the content, a calm and professional request can sometimes resolve things quickly - especially where the person has acted impulsively and didn’t expect consequences.
This is where a carefully drafted letter can help, because you want it to:
- identify the statements clearly,
- explain why they are false and harmful, and
- request removal, a correction, and/or a retraction.
Depending on the situation, a cease and desist letter can be a practical first escalation step (without immediately launching into court proceedings).
Consider A “Neutral” Public Reply (When Reviews Are Involved)
If the statement is in a public review, you may decide to respond publicly - but do it strategically.
A safe pattern is:
- acknowledge the comment without agreeing with false claims,
- invite the person to contact you privately, and
- avoid disclosing private information (even if the reviewer already has).
If your business collects personal information through bookings, enquiries or marketing lists, it’s also worth ensuring your Privacy Policy is up to date - not because it directly stops defamation, but because public disputes can quickly create privacy risks when people start sharing screenshots, invoices or personal details.
Be Careful About Recording Calls Or Conversations
When you’re dealing with a difficult customer, ex-contractor, or former employee, it’s natural to want to “get it on record”.
But recording conversations is regulated and the rules can vary depending on where you are, who is involved, and whether consent is required.
Before you hit record, it’s worth checking the business call recording laws that apply to your situation - especially if you plan to use the recording as evidence or share it with a third party.
When Should You Escalate? Legal Options For Defamatory Publications
If the publication is causing serious reputational damage - or the person refuses to remove it - you may need to escalate. The right approach depends on what you want to achieve (removal, correction, compensation, or stopping ongoing publication).
1. “Concerns Notice” And Pre-Action Steps
In many Australian jurisdictions, defamation law requires parties to take certain steps before starting court proceedings. A common pathway is issuing a formal “concerns notice” (or similar pre-action notice) that sets out:
- the specific defamatory imputations (what the statements suggest),
- why they are defamatory and harmful, and
- what you are seeking (removal, apology, correction, undertakings, compensation).
These notices need to be drafted carefully, including because the requirements and timelines can vary depending on the state or territory and the type of publication. A poorly drafted notice can reduce your negotiating leverage, or lock you into an approach that isn’t ideal.
2. Negotiated Resolution (Apology, Retraction, Undertakings)
Many disputes resolve without going to court. For SMEs, a practical outcome might include:
- removal of the post/review,
- a written retraction or correction,
- an apology (public or private),
- an undertaking not to republish, and
- agreement about what will be said going forward.
It’s also common to include confidentiality terms, so the dispute doesn’t keep resurfacing online. This is where it helps to understand the difference between privacy and confidentiality - they’re not the same thing, and the right solution depends on what information you’re trying to protect.
3. Court Action (Including Injunctions In Urgent Cases)
In more serious cases, court proceedings may be considered - particularly where:
- the publication is ongoing and escalating,
- the allegations are extremely serious (for example, criminal conduct),
- the publisher is refusing to engage, or
- there’s measurable commercial harm.
Depending on circumstances, urgent action may focus on stopping further publication (for example, seeking an injunction), not just compensation after the fact.
Because defamation is technical and time-sensitive, it’s worth getting legal advice early so you can choose the right strategy, preserve evidence, and avoid steps that could weaken your position.
How To Reduce The Risk Of Defamatory Attacks In The First Place
You can’t control everything people say online. But you can reduce risk by tightening your processes, contracts, and communication habits.
Put Clear Communication And Complaints Processes In Writing
Many reputational issues start as a customer complaint that wasn’t handled well (or wasn’t handled consistently).
Simple improvements can make a big difference, such as:
- a clear escalation pathway for explaining and resolving complaints,
- consistent refund/rectification processes, and
- template responses for reviews and online comments.
This doesn’t just prevent escalation - it also helps you demonstrate that your business acts reasonably, which can matter in dispute resolution.
Use The Right Contracts With Staff And Contractors
Some of the most damaging defamatory statements come from people who had inside access: ex-staff, disgruntled contractors, or business partners.
Strong onboarding and exit processes help, including:
- clear confidentiality obligations (before and after they leave),
- social media and communications expectations, and
- clear dispute and feedback channels.
If you engage workers, a properly drafted Employment Contract can help set expectations early and reduce the risk of messy “he said/she said” disputes later.
If you need to share sensitive information with third parties (like suppliers, consultants, or potential partners), a Non-Disclosure Agreement can help protect confidential information that might otherwise be weaponised during a conflict.
Consider Non-Disparagement Terms In The Right Situations
In some situations (for example, business separations, settlement agreements, or commercial exits), you may be able to include non-disparagement clauses.
These don’t replace defamation law - but they can be a useful contractual tool to discourage damaging public statements and provide a clearer enforcement pathway if a dispute flares up again.
Where appropriate, a Non-Disparagement Agreement (or a clause in a broader settlement) can be part of a practical risk management plan.
Train Your Team On “Safe” Responses (So You Don’t Create New Liability)
Defamatory situations can spiral when a staff member responds emotionally, shares private information, or accuses the other party of wrongdoing without proof.
Training can be light-touch and still effective, for example:
- who is authorised to respond publicly,
- what must never be disclosed (customer details, staff details, invoices, screenshots), and
- how to escalate threats or serious allegations to management quickly.
It’s often helpful to have one person “own” reputation issues (even in a small team), so responses stay consistent and professional.
Key Takeaways
- A statement may be defamatory if it’s published to someone else, identifies your business, and causes reputational harm - and in many cases you’ll also need to show serious harm.
- Your first priorities should be to preserve evidence, avoid a public argument, and assess who published the statement and how far it has spread.
- Often the quickest “damage control” step is a platform takedown request or a direct removal request, but your messaging needs to be careful.
- If the harm is serious or ongoing, a formal legal escalation (including pre-action steps and negotiated outcomes) may be appropriate.
- You can reduce future risk by tightening contracts and policies, improving complaint handling, and setting clear rules on public communications and confidentiality.
If you’d like help responding to defamatory statements about your business or putting protections in place to reduce risk, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
This article is general information only and is not legal advice. For advice on your specific situation, talk to a lawyer.
