The test under s 13 of the Defamation Act 1974 (NSW) is whether, at the time of publication, the circumstances were such that the plaintiff was not likely to suffer harm — meaning the absence of a real chance or real possibility of harm. The section is not concerned with whether harm was in fact suffered. The grapevine effect is relevant to s 13 insofar as there is a chance of republication in circumstances where there is a likelihood of harm, but proof of actual damage from republication is not required for the defence to fail. Prior bad reputation of the plaintiff is not a 'circumstance of the publication' but the recipient's knowledge of the plaintiff may be.
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