Mia JonesThe US Court of Appeals for the Second Circuit on 12 May 2026 paused Donald Trump's obligation to pay E. Jean Carroll the $83 million defamation award handed down in January 2024, ordering instead that he post a $7.4 million bond to cover accruing interest while the case heads toward the Supreme Court. The ruling drew immediate attention in Australia, where defamation law looks profoundly different and where the same fact pattern would have produced a very different result.
Carroll, a longtime advice columnist, won her first $5 million verdict in May 2023 after a New York jury found Trump had sexually abused her in a department store changing room and then defamed her when she published the account in a 2019 memoir. The follow-up $83 million verdict targeted comments Trump made while serving as president. Those presidential-era statements are now at the centre of a separate appeal arguing absolute immunity, with the US Solicitor General signalling in early May that the federal government intends to intervene at the Supreme Court.
Why this is more than an American story
Australian readers see the Carroll case for two reasons. The first is volume: comparable claims about a public figure published in Australia would be litigated under the Defamation Act 2005, the harmonised model legislation enacted in every state and territory, which was substantially rewritten in 2021. The second is currency: the High Court's 2024 hearing of the Bruce Lehrmann appeal and the Federal Court's Rebel Wilson decisions have kept defamation in the headlines, and many Australians wrongly assume US rules are the global default.
A defamation lawyer in Sydney, Melbourne or Brisbane will tell you four things change the moment a Carroll-style case crosses the Pacific.
Four ways the case would run differently in Australia
1. The "serious harm" threshold would arrive on day one.
Since the July 2021 reforms commenced in NSW, Victoria, Queensland, South Australia, the ACT and Tasmania, an Australian plaintiff must prove the publication caused, or is likely to cause, serious harm to reputation before the case can proceed. The threshold has already knocked out claims that would have moved to trial under the pre-2021 regime. In Carroll's circumstances the threshold would likely be met given the scale of the publications, but the issue would be argued before discovery, not at final hearing.
2. A concerns notice would be compulsory before filing.
Section 12B of the Act now requires a written concerns notice setting out the imputations relied upon and the harm alleged. The respondent has 28 days to make an offer to make amends. Skipping this step is fatal: the case is struck out. In the United States Carroll filed two separate suits without any pre-litigation correspondence of that kind.
3. The damages would be capped at a far lower number.
Australia caps general damages for non-economic loss in defamation. Indexed annually, the cap sits at $478,550 for the financial year 2025-26 (Attorney-General's gazette notice, July 2025). Courts can exceed the cap only where aggravated damages are warranted, and even then awards rarely approach $5 million, let alone $83 million. Economic-loss damages are separate but require granular proof of lost earnings, contracts or business value.
4. Presidential immunity has no analogue.
There is no equivalent in Australian law to the absolute presidential immunity Trump is asserting. The closest doctrine is parliamentary privilege, which protects statements made in the chambers of federal or state parliament but does not extend to comments made elsewhere by current or former office-holders. A serving prime minister sued in their personal capacity for a defamatory statement made at a press conference would face the same defences any other defendant relies upon: justification, contextual truth, public interest, honest opinion, qualified privilege.
Truth, public interest and the new defences
Australia's 2021 reforms also introduced a statutory public interest defence modelled on the United Kingdom's Defamation Act 2013. The defence protects publication on a matter of public interest where the publisher reasonably believed the publication was in the public interest. It has been argued in several recent Federal Court matters and the threshold for "reasonable belief" remains contested.
The justification defence — proof that the imputations are substantially true — still operates as a complete answer. That distinction matters in the Carroll context: the New York jury was instructed that, for the purpose of damages, Trump had sexually abused Carroll. An Australian defendant making comparable comments after such a finding would have effectively no truth defence available against an imputation tracking the jury's findings.
What an Australian should actually do with this news
If you are a public commentator, a journalist, or an executive whose statements reach a national audience, three practical steps follow from the Carroll appeal:
- Review your insurance. Most professional indemnity and media liability policies in Australia exclude punitive damages and impose strict notification windows. Read the conditions before you publish, not after a concerns notice arrives.
- Document your sources contemporaneously. The 2021 public-interest defence depends on what you actually believed and how you reached that belief, evidenced by your own records.
- If you receive a concerns notice, instruct a defamation lawyer the same week. The 28-day window for making an offer to make amends starts on receipt, and a well-pitched offer is the single most powerful tool the Act gives a respondent.
The text of the Defamation Act 2005 and the 2021 amendments is published by the New South Wales Parliamentary Counsel's Office at legislation.nsw.gov.au and is mirrored by the model statute in every other Australian jurisdiction.
The Trump-Carroll appeal will be litigated in Washington, not Sydney. But for any Australian who publishes, posts or broadcasts about a public figure, the case is a reminder that the rules in your own jurisdiction are tighter, faster and considerably less forgiving than the headlines from New York suggest.
