Defamation proceedings must generally be commenced within one year of the date of publication. For electronic publications, this means the day on which the matter was first uploaded for access or sent electronically to a recipient.

If a concerns notice (under s 12A of the Defamation Act 2005 (SA)) is given to the publisher on a day (the notice day) within the period of 56 days before the 1 year limitation period expires, then the limitation is extended for an additional 56 days minus any days remaining after the notice day until the one year limitation period expires [ ss 37(2), 37(3)].

Single publication rule

If a person (the first publisher) publishes matter to the public that is alleged to be defamatory (the first publication); and the first publisher or an associate of the first publisher subsequently publishes (whether or not to the public) matter that is substantially the same, then any cause of action for defamation in respect of the subsequent publication is to be treated as having accrued on the date of the first publication for the purposes of determining when:

-the normal limitation period applicable under section 37 begins; or

– the extended 3-year period referred to in section 37B(2) begins, see Extension of limitation period below.

This single publication rule does not apply in relation to a subsequent publication if the manner of that publication is materially different from the manner of the first publication. In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the considerations to which the Court may have regard include the level of prominence that a matter is given and the extent of the subsequent publication.

The single publication rule does not limit the Court’s ability to extend the limitation period applicable under section 37 (see 37B).

Extension of limitation period

The Court may extend the limitation period to up to 3 years running from the date of the publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed. In determining whether to extend the limitation period, the Court must consider all of the circumstances of the case and in particular the factors outlined in section 37B(3) of the Limitation of Actions Act 1936 (SA).

Such factors include:

  • the length and reason for the plaintiff’s delay; and
  • whether relevant facts only became known to the plaintiff after the limitation period expired, and whether or not the plaintiff acted properly and reasonably as a consequence; and
  • whether relevant evidence is likely to be unavailable or less cogent