What to do after receiving a Concerns Notice for defamation
Receiving a Concerns Notice or any other allegation that you have committed defamation can be confronting. Modern defamation claims frequently arise in circumstances where the publication may have seemed inconsequential at the time, such as posting negative comments or reviews online. You may be left wondering, “Wait – am I really liable for defamation? What should I do now?”. We’re here to help.
What is a Concerns Notice?
Defamation is a tort, meaning it involves a civil wrong rather than a criminal offence. The person alleging defamation is typically referred to as ‘the aggrieved’, while the person who alleged to have defamed the aggrieved is referred to as ‘the publisher’.
Issuing a Concerns Notice under the Defamation Act 2005 (Qld) (the Act) is a pre-condition to commencing Court proceedings for defamation. The aggrieved cannot commence a claim unless they have first provided the publisher with a valid Concerns Notice. There is a one-year statutory limitation period for defamation claims, running from the date of publication.
To be valid, the Concerns Notice must:
- be in writing;
- specify where the material can be accessed;
- inform the publisher of the defamatory imputations; and
- identify the serious harm caused, or likely to be caused, to the aggrieved’s reputation.
It is also important to note that a company cannot bring a claim in defamation unless it qualifies as an ‘excluded corporation’ under section 9 of the Act. If the aggrieved is an excluded corporation, it must also establish serious financial loss caused, or likely to be caused, by the publication (section 10A of the Act).
What happens after receiving a Concerns Notice?
If the Concerns Notice does not adequately particularise (that is, clearly identify and explain) the required elements above, you may issue a Further Particulars Notice. This requires the aggrieved to provide additional information, where reasonable.
The aggrieved has 14 days to respond to a Further Particulars Notice. If they fail to do so, the Concerns Notice may be invalid and an aggrieved may be unable to start any Court proceedings. This would require the aggrieved to re-issue a new Concerns Notice. In practice, this can be a useful strategic step to test the strength of the claim.
Otherwise if you do not require (or it is not reasonable to) a Further Particulars Notice to be issued, the publisher have 28 days to make an ‘Offer to Make Amends’. This period begins when the publisher receives a valid Concerns Notice and restarts if further particulars are provided (or if a Concerns Notice is required to be re-issued).
An Offer to Make Amends may include:
- an apology;
- compensation; and/or
- a correction or retraction of the publication.
While the aggrieved may propose terms for any Offer to Make Amends, the publisher is entitled to put forward any reasonable offer.
But what if I’m sure I haven’t committed defamation?
In some cases, you may have a clear defence available. Alternatively, the publication may not give rise to a viable defamation claim at all.
Even in these circumstances, it is generally prudent to respond and put the aggrieved on notice that their claim lacks merit and/or will be defended. Taking this step will put you in a better position to recover any legal costs incurred if proceedings are commenced by the aggrieved and ultimately fail.
Bottom Line
If you have received a Concerns Notice, do not leave your position to chance. Seeking early legal advice to put forward a considered, strategic response is the best way to deal with a Concerns Notice.
Each matter depends on its specific facts and circumstances, and the appropriate response will vary accordingly. We regularly assist clients in assessing and responding to Concerns Notices, including preparing strategic responses and offers to make amends. If you have received a Concerns Notice (or something you think looks like one) act quickly and seek legal advice.
Get in contact with our team should you have received a Concerns Notice or need assistance.
