A concerns notice is a process available in defamation law under the Defamation Act 2005 (NSW) (‘the Act’).
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.
Not many people are aware of the risks associated with posting on social media. Popular social media platforms such as Twitter and Facebook are not safe spaces to vent your thoughts. In fact in a recent defamation case, the defendant was ordered to pay a staggering amount in damages for his post on Twitter. In this blog, we explore the meaning of defamation and how it still applies in the modern age of social media.
What is Defamation?
Defamation is either an oral (called ‘slander’) or written (called ‘libel’) statement about someone which injures the reputation of that person. In general terms, to prove defamation, one must show the existence of a false statement, which the defendant may try to argue that it was an honest opinion or a fair comment. In Australia, the Defamation Act 2005 sets out the rules regarding defamation law.
Can You Defame People on Social Media?
It is absolutely possible to defame people on social media in Australia and the defamed individual may bring proceedings against you for what you said.
In order to bring a successful defamation case against an individual who posted defamatory material on social media, the following must be satisfied:
- The material must be defamatory;
- The material must identify the plaintiff; and
- The material must have been published to a third party.
Are There Any Recent Case Law Examples?
A recent decision from March 2020 revealed that harsh penalties can be imposed for defamatory statements published on social media. The Supreme Court awarded $110,000 for damaged in relation to defamatory comments made on a Facebook page about the plaintiff.
In this case, a series of posts on a public Facebook page called “Narri Leaks” were made by the defendant Mr Stoltenberg. The post implied that, Mr Bolton, the Mayor of Narrabri Shire Council, was ‘corrupt, dishonest and intimidating in his role as Mayor’. Ms Loder, the other defendant, made “comments” on those Facebook posts.
Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. It was found that the Facebook posts were indeed defamatory, and that Mr Stoltenberg had no defences available to him.
What Can I Do If I Am Defamed Or Being Sued For Defamation?
It is always important to be aware that your activities on social media can have very costly consequences.
If you believe that you have been defamed or if you have been accused of defamation due to posts on your social media page, then you should seek legal advice immediately.
For assistance or advice on how to proceed please call on (02) 9963 9800 or get in touch via our contact form here.