Defamation Act: What to do if you receive a Concerns Notice?

Author: Ian Aldridge, Progressive Legal

Receiving a Concerns Notice under the Defamation Act in Australia can be a stressful experience. A Concerns Notice is a formal document that outlines concerns about potentially defamatory statements that have been made about an individual or an organisation.

If you receive a Concerns Notice, it’s really important to get expert legal advice before responding and then take appropriate steps to minimise your legal risk. A big danger is that you may expose yourself/your business to damages, Court costs, legal costs (even indemnity costs sometimes for flagrant conduct) and public Court findings, Judgment etc. All of this can seriously impact a business or person. Your response should be respectful and address the specific concerns outlined in the Concerns Notice.

In this article, we will discuss what you should do if you receive a Concerns Notice under the Defamation Act in Australia. 

Understanding the Defamation Act

The Defamation Act in Australia provides a legal framework for individuals and organisations to protect their reputation from potentially defamatory statements. Understanding the Defamation Act and its requirements is crucial if you receive a Concerns Notice. 

The purpose of having a concerns notice is to allow those accused of making defamatory statements the opportunity of rectifying them, prior to the commencement of legal proceedings. It’s now a pre-requisite (i.e. mandatory) to now do this before commencement of litigation. The aim really is to try and resolve those disputes before litigation ensues so as not to flood the Courts with unnecessary defamation matters. The publication of defamatory statements no doubt causes immediate concern to individuals and businesses that fall under the relevant provisions of the Act. 

Step 1 – Seek Legal Advice

Defamation cases can be complex, and it is essential to seek legal advice if you receive a Concerns Notice. A lawyer who specialises in defamation law can help you understand the legal issues at stake and the best course of action. They can also help you draft a response to the Concerns Notice and negotiate a resolution if possible. Much depends on a number of factors including the publication, the statement(s) made, the imputation of those statements, the audience, the complainant and other relevant considerations that all go into the advice matrix.  

There are a few items to consider such as whether the formal requirements of the Concerns Notice has been met, whether the aggrieved has legal standing to issue, if further particulars are required, whether the limitation period has expired, elements to the causes of action, the time periods to respond and whether there are any potential defences to defamation available to you.  

Step 2 – Respond to the Concerns Notice

It is essential to respond to a Concerns Notice promptly and professionally. Failing to respond or responding inappropriately can increase your legal risk. People generally don’t like to be ignored. Especially lawyers. Doing nothing sometimes can be advised but more often than not, having a carefully worded response and actions are usually your best bet against time consuming and costly litigation.  

Step 3 – Consider issuing a Further Particulars Notice

In some jurisdictions, such as New South Wales and Queensland, the relevant defamation legislation specifically provides for a party to request further and better particulars in response to a concerns notice. This means that you can request additional information from the other party to help clarify the nature of their concerns and the specific statements that are being challenged. Under the Defamation Act (Qld) and Defamation Act (NSW) for example, you can respond by providing a Further Particulars Notice if there are any specific items missing from the Concerns Notice.  

If you decide to request further and better particulars, you should do so in writing and provide specific details about the information you are seeking. For example, you may wish to request additional information about the specific statements that are being challenged, the reasons why they are considered defamatory, or the specific harm that has been caused. 

It is important to note that the other party is not necessarily obliged to provide all of the information you request, and they may object to some or all of your requests on various grounds. However, requesting further and better particulars can help clarify the issues in dispute and may help facilitate a resolution without the need for legal action. 

By seeking Further Particulars, you then put the complainant to spelling out exactly what the alleged defamation is and puts the onus back on them to respond, which they have to do within 14 days. If the aggrieved/complainant doesn’t respond to that Further Particulars Notice, then it can be considered that the original Concerns Notice wasn’t issued in the first place.  

Step 3 – Consider an offer to make amends (correction, retraction or apology)

An offer to make amends is a formal process under Australian defamation law that allows a potential defendant to offer to make a correction, retraction, or apology in order to resolve a defamation claim before it goes to Court. 

The offer to make amends process is set out in the Defamation Act 2005 (Cth) and equivalent state and territory legislation. Under this process, a potential defendant who has received a concerns notice or been sued for defamation can make a formal offer to make amends to the plaintiff/aggrieved person or business. 

The offer to make amends must be made in writing and must include a correction, retraction, or apology that is suitable to the nature and seriousness of the defamatory material. The offer must also be accompanied by an offer of compensation for any harm that has been caused. 

If the plaintiff/aggrieved accepts the offer to make amends, the matter can be resolved without the need for legal action. If the offer is rejected, the defendant can rely on the offer as evidence of their willingness to resolve the matter and may be entitled to certain legal protections if the matter proceeds to trial. 

It is important to note that the offer to make amends process is not available in all circumstances, and there are specific requirements that must be met in order to make a valid offer. If you’re considering making an offer to make amends, it’s important to seek legal advice to ensure you comply with the requirements of the relevant legislation.

If you’ve made a potentially defamatory statement, it may be appropriate to retract or apologise for the statement. Retracting or apologising can reduce your legal risk and may help resolve the issue without the need for legal action. Remember, any admission made in this type of offer is not admissible evidence in Court, so it can’t be used against you later legally. This rule is to encourage people to settle disputes out of Court.   

If at all possible, it is wise to negotiate a resolution to the concerns outlined in the Concerns Notice. Negotiating a resolution can help avoid a costly and time-consuming legal battle. A lawyer can help you negotiate a resolution that protects your interests while addressing the concerns of the complainant. Even if you think the Concerns notice doesn’t warrant a response, you should at least get that initial advice so you can make a considered decision.  

Conclusion

Receiving a Concerns Notice under the Defamation Act in Australia can be a daunting experience. However, understanding the legal requirements, seeking legal advice, responding promptly and professionally, and negotiating a resolution can help minimize your legal risk and resolve the issue in a satisfactory manner. If you receive a Concerns Notice, take it seriously and act quickly. 

*NB// The contents of this article are information only and should not be relied on as legal advice. Please seek specialist legal advice in relation to your particular situation.   

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