Defamation Law in South Australia: The Partial Stage 2 Adoption

South Australia adopted the 2021 reforms in full but only part of the 2023 digital intermediary package. SA took a non-party takedown power and police-report privilege, but declined the intermediary exemptions, leaving platforms without a statutory safe harbour.

This article addresses defamation law in South Australia under the Defamation Act 2005 (SA), including its full adoption of Stage 1 reforms and its partial adoption of Stage 2. It compares SA's position to the rest of Australia, covered on the Australian defamation law hub.

Stage 1: Fully Adopted, From 1 July 2021

South Australia adopted the full Stage 1 reform package on the same timetable as New South Wales, Victoria, Queensland and the ACT, commencing 1 July 2021. SA has a serious harm element of the cause of action at s 10A, the same section number New South Wales, Victoria, Queensland and Tasmania use, requiring a plaintiff to prove the publication caused, or was likely to cause, serious harm to their reputation, decided by a judge rather than a jury. SA also has the mandatory concerns notice precondition at ss 12A-12B, again matching the NSW numbering, meaning an aggrieved person cannot commence proceedings without first serving a valid concerns notice and waiting out the applicable period, generally 28 days. See the serious harm threshold and concerns notices in Australia for how these rules work in substance.

Stage 2: Adopted in Part Only, From 15 December 2025

This is where South Australia genuinely diverges from most of the reforming jurisdictions, and it must not be flattened into a simple statement that "SA adopted Stage 2." From 15 December 2025, SA took two specific elements of the Stage 2 package. First, a court's power to order a non-party digital intermediary, one that is not itself a defendant, to prevent access to defamatory digital matter once an injunction against the primary publisher has issued, inserted at s 37A. Second, an extension of absolute privilege to reports made to police in their official capacity, a reform aimed particularly at protecting people, including survivors of sexual assault and other violence, from the threat of a defamation claim over the act of reporting a crime, though that protection does not extend to republication of the report elsewhere. SA declined the other, larger half of the Stage 2 package: the statutory exemptions for intermediaries providing purely technical caching, conduit or storage functions and for search engines over organic results, and the complaints-based innocent dissemination defence that gives a platform a route to a defence by running an accessible complaints process and acting within 7 days of a valid complaint. Checking SA's own consolidated Act directly confirms this: its defences division ends at ordinary innocent dissemination (s 30), with no equivalent to the digital intermediary defence New South Wales, Victoria, the ACT, Tasmania, the Northern Territory and Queensland each have, and SA has no Division 2A exemptions at all.

Why This Matters: No Statutory Safe Harbour for SA Intermediaries

The practical consequence of SA's partial adoption is that a digital intermediary operating in South Australia has no statutory safe harbour equivalent to the one available in the fuller-adopting jurisdictions. Where a platform in New South Wales, for example, can point to a specific statutory exemption or a complaints-based defence to manage its exposure for third-party content, a platform whose relevant conduct is assessed under South Australian law cannot. It remains exposed to ordinary common law publisher liability, the kind of liability the High Court examined in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, without the statutory defence a platform in the other reforming jurisdictions could raise. See online defamation in Australia for the fuller comparison across all eight jurisdictions.

Section Numbers Run Two Behind the NSW Model

South Australia's Act is structured so that its Part 4 defences and remedies divisions sit two section numbers earlier than the equivalent New South Wales provisions throughout, a consequence of how SA's Act was originally drafted rather than anything to do with the later reforms. Justification is s 23 in SA, not s 25. Honest opinion is s 29, not s 31. And the damages cap is s 33, not s 35. A reader who assumes SA mirrors the NSW section numbers exactly, rather than shifted by two throughout most of the Act, will consistently cite the wrong section.

Damages Cap: Section 33(3)

SA's damages cap sits at s 33, reserved for the most serious case, with aggravated damages awarded separately under s 33(2a) and not limited by the cap, mirroring the substance of the rule described on defamation damages in Australia. The current figure reached $520,000 from 1 July 2026, declared and published in South Australian Government Gazette No. 30 (28 May 2026, p. 1556), the same figure that applies in every other Australian jurisdiction.

How South Australia Compares to the Other Partial and Full Adopters

South Australia is best understood as sitting between the fully reformed jurisdictions and Western Australia, rather than alongside either. Unlike New South Wales, Victoria, the ACT, Tasmania, the Northern Territory and Queensland, SA lacks the digital intermediary exemptions and complaints defence, leaving a genuine gap for platforms. Unlike Western Australia, however, SA has fully adopted Stage 1, meaning the serious harm threshold, the mandatory concerns notice and the public interest and peer review defences all apply there in the same substantive form as in New South Wales. SA also went further than a purely partial adopter might have, by taking the non-party takedown power and the police-report privilege ahead of, or alongside, jurisdictions that adopted the fuller intermediary package. A reader assessing a South Australian defamation matter involving a digital publication should treat SA as its own distinct category, not as a simplified stand-in for either the fully reformed states or Western Australia.

Why the Distinction Matters for Anyone Running a Platform or Page in SA

A business or individual who moderates a public page, forum or comments section and is assessed under South Australian law cannot rely on the statutory digital intermediary defence that would be available for the same conduct in New South Wales, Victoria, the ACT, Tasmania, the Northern Territory or, from 26 December 2025, Queensland. That does not mean SA law treats every intermediary as automatically liable; ordinary publisher principles, including the reasoning in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 about what conduct amounts to publication, still apply and still require the plaintiff to establish that the intermediary was in fact a publisher on the facts. What SA lacks is the additional statutory layer of protection, not liability itself as a certainty.

The Police-Report Privilege in Context

The extension of absolute privilege to police reports, in force in South Australia from 15 December 2025, followed a national review of the model defamation provisions led on this specific point by Victoria, examining whether the threat of a defamation claim was deterring people, particularly survivors of sexual assault and other violence, from reporting crimes to police at all. The reform gives a person who makes a report to a police officer acting in an official capacity a complete defence to any defamation claim over that report, regardless of whether the report is later found to be true, though the protection is confined to the report itself and does not extend to republishing the same allegation elsewhere, such as on social media. This is a narrower, more targeted reform than the broader intermediary package SA declined, and it reflects a different policy objective: protecting complainants specifically, rather than reshaping platform liability generally.

This article provides general legal information about defamation law in South Australia, verified 20 July 2026. It is not legal advice about your own situation. For advice, consult a legal practitioner admitted in the relevant Australian state or territory.

Related reading: the Australian defamation law hub, online defamation for the full digital intermediary comparison, the serious harm threshold, concerns notices, and defamation damages in Australia.