Defamation: What to do if you receive a ‘Concerns Notice’
It is not uncommon for an agency or agency employee to receive a concerns notice issued under the Defamation Act 2005 (Qld) (“the Act”). The objective of the concerns notice process is to resolve disputes regarding alleged defamation quickly without the need for litigation.
The ‘concerns notice’
A concerns notice is a notice sent by an aggrieved person to the person who published material complained of by the aggrieved person. The concerns notice sets out the publication complained of and the “defamatory imputations” (or inferences) that are said to arise from the publication. The concerns notice, which is similar to a letter of demand, generally requests that the publisher take certain action in order to avoid legal proceedings being issued against them by the aggrieved person.
Offer to make amends
The Act provides for an ‘offer to make amends’ to be made by the publisher to the aggrieved person. Importantly, in order to be protected under the Act, any offer to make amends must be made within 28 days of having received the concerns notice.
An offer to make amends must include certain things, which includes an offer to pay expenses reasonably incurred by the aggrieved person. The offer may also include an offer to publish an apology or an offer to pay compensation.
It is important to note that any admission or apology made in connection with an offer to make amends is not admissible in any legal proceeding and does not constitute an express or implied admission of fault or liability.
The benefit of making an offer to make amends, providing that the offer is later considered by the Court to be reasonable, is that if the offer is not accepted by the aggrieved person and your agency is successful at trial the Court can award costs on an indemnity basis.
An offer that is made and accepted works as a complete bar to any future legal proceeding issued by the aggrieved person.
Defences to defamation
There are a number of defences available to a defamation claim both under the Act and the common law. Some of those defences include:
- substantial truth;
- absolute privilege (in the case of proceedings of parliament, or a Court or tribunal);
- qualified privilege (including the publication of things that are of public interest);
- honest opinion;
- publication of a public document; and
- fair report of proceedings of public concern.
What to consider
There are a number of things to consider on receiving a concerns notice, including:
- whether the formal requirements of the notice have been met;
- if further and better particulars of the defamatory imputation are required;
- whether the aggrieved person is a corporation;
- has the limitation period to commence a defamation proceeding expired?
- does it appear that the elements of the cause of action for defamation are met?
- if there are any defences that apply;
- should an offer to make amends be made under the Act? And
- if so, when does the 28 days to make that offer expire?
The main implication arising from the legislation is that your response to a concerns notice can have costs consequences in the event the matter eventually proceeds to trial and is determined by a Court. That means that any concerns notice received needs to be carefully considered and responded to within the requisite timeframe (should an offer be made), so that an appropriate response can be prepared and provided to the aggrieved person. Crown Law’s Commercial Dispute Resolution team has lawyers experienced in defamation claims who can assist your agency with legal advice and representation in these matters. Please do not hesitate to contact Assistant Crown Solicitor Paula Freeleagus or Senior Principal Lawyer Paul Lack if you require any assistance in this regard.