A concerns notice is sent to a person who has made defamatory statements, giving them an opportunity to respond and make amends. They might, for example, offer to retract the statements or issue a public apology.
In the event that a reasonable offer is made but is not accepted, that reasonable offer may provide a complete defence if legal action is taken by the person who alleges defamation. It is up to the judge to determine whether or not the offer ought to have been accepted and in doing so will consider whether it was a reasonable offer.
Issuing a concerns notice gives a person who may have breached the Act an opportunity to prevent a claim being made against them by putting forward a reasonable offer. It also gives the victim of the alleged defamation an option for correcting the comments, therefore protecting their reputation.
To be able to use the reasonable offer as a defence in any subsequent legal action the offer:
- Must be in writing,
- Must indicate that it is an offer to make amends under the Defamation Act,
- Must include an offer to publish a reasonable correction of the matters in question; and
- May include an offer to pay the other party’s reasonable expenses incurred before the offer was made.
Whilst the offer may include an offer to pay the compensation, this is not a requirement. However, it would be relevant when considering whether the offer was reasonable, if proceedings are commenced.
A concerns notice is therefore an appropriate tool when you are seeking to resolve a matter quickly, usually with an apology and sometimes with compensation.
In many cases, a person may not respond to a concerns notice. This means that they have lost the opportunity to put forward an offer and to prevent proceedings being initiated against them.
Seek Legal Advice
If you wish to commence proceedings in relation to a defamation matter, you must do so within twelve (12) months from the date of publication of the comments. If you would like further information regarding defamation or general media law advice, please do not hesitate to contact one of our experienced solicitors on (02) 9963 9800 or via the contact form here.