Sending a Concerns Notice – Complete Guide

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Article Summary

Have you been defamed and looking to send a defamation concerns notice?

This article delves into the intricacies of defamation law, a legal framework established to protect individuals and certain organisations from damaging statements that could tarnish their reputation.

It outlines the key components of defamation, including its definition, the essential elements required to establish a claim, and the significant role of Concerns Notices in addressing defamation allegations.

The article also highlights the recent reforms that introduced a “serious harm” threshold, emphasising the procedural steps and strategic considerations crucial for navigating defamation actions.

Through a detailed examination of the Defamation Act 2005, it provides valuable insights into how aggrieved parties can effectively use concerns notices to initiate a resolution process, the specific conditions under which corporations can take action, and the paramount importance of obtaining legal advice in defamation matters.

Our experienced defamation lawyers provide you with a complete guide to concerns notices.

What is Defamation?

Defamation (commenced by a concerns notice) encompasses the legal framework designed to safeguard individuals and certain organisations from untrue or harmful information and assertions that could negatively impact their social standing or reputation.

This area of law is established through a mix of common law and statutory provisions.

The publication is defamatory if it:

  1. Injures the reputation of the person by exposing it to hatred, contempt, ridicule, or being though less of; and/or
  2. Lowers the person estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
  3. Put’s the person in the position of being shunned and avoided.

A publication can be done through any means, including:

  1. Images or cartoons.
  2. Spoken words (conversations, speeches, broadcasts).
  3. Written words (articles, social media posts, emails).

If these things happen, then you might have a claim in defamation.

This article is Part I in the series. Part II here – I’ve Received a Concerns Notice, What Do I Do?

The Four (4) Key Elements of Defamation

There used to be three key elements to defamation is Australia, however the defamation reforms in 2021 essentially added a fourth.  The four (4) key elements of defamation are:

  1. A person made a publication to a third-party.
  2. The publication named the aggrieved person or identified them in some way.
  3. The publication was defamatory or had defamatory imputations.
  4. The defamatory publication is likely to cause serious harm.

A publication can be almost anything including things like blog posts, advertisements, emails, Facebook posts, internet articles, Instagram posts, newspaper articles, magazine stories, novels and books, letters, notes, online business reviews, paintings, photographs, poems, radio shows, SMS text messages, songs, television shows, Twitter posts, YouTube, pictures, gestures or oral utterances, any other thing by means of which something may be communicated to a person.

A publication is defamatory is it lowers the aggrieved person’s reputation. A statement “lowers reputation” whether written, spoken, or depicted, if it conveys a meaning that lowers the person’s reputation in the eyes of reasonable members of the community. This could involve portraying them as:

  1. Behaving in a dishonourable or immoral way.
  2. Dishonest or untrustworthy.
  3. Having a criminal record (if untrue).
  4. Incompetent in their profession.

The defamatory publication must also cause serious harm or be above the serious harm threshold in defamation.  Section 10A of the Defamation Act establishes that it is an element (serious harm element) of a cause of action for defamation.

The critical aspects to illustrate the actual serious harm include:

  1. The reach and impact of the publication, including the number of people it reached — though the total count alone may not be conclusive.
  2. How widely and repeatedly the publication was distributed, taking into account any further sharing or the “grapevine effect” — and looking at signs of its influence, such as public reactions on social media.
  3. The publication’s format — influencing how closely the audience pays attention to and interprets its content.
  4. The geographic distribution of the publication’s audience — showing where the readers or viewers were based.
  5. How the audience understood the publication — examining if it led them to think less of the plaintiff, though the absence of such evidence isn’t necessarily critical.
  6. The publication’s topic — connected to what the audience already knew or thought about the plaintiff’s reputation.
  7. The timing and longevity of the publication — emphasising how long-lasting the publication is, which could cause damage (for instance, if it’s online or on social media, its persistent availability, out of the plaintiff’s control, could damage the plaintiff’s reputation at any time it’s accessed).

Full detailed article here – Serious Harm Threshold in Defamation

If these elements can be satisfied, then the first compulsory step is to issue a defamation concerns notice.

What is a Concerns Notice?

A defamation concerns notice is a formal written notice to a publisher of a defamatory publication. It puts the publisher on notice that their published statement is defaming you. If someone has made a defamatory publication about you, the first step is sending them a concerns notice.

A concerns notice is prescribed in section 12A of the Defamation Act 2005 (Qld), and says:

(1) For the purpose of this Act, a notice is a “concerns notice” if –
(a) the notice –
(i) is in writing; and
(ii) specifies the location where the matter in question can be accessed (for example, a webpage address); and
(iii) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question; and
(iv) informs the publisher of the harm that the person considers to be serious harm to the person’s reputation caused, or likely to be caused, by the publication of the matter in question; and
(v) for an aggrieved person that is an excluded corporation—also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question; and
(b) a copy of the matter in question is, if practicable, provided to the publisher together with the notice.

Requirements for a Concerns Notice

Therefore, following section 12A of the Defamation Act, the requirements for a concerns notice are:

  1. The concerns notice must be in writing.
  2. The concerns notice must include the location of the publication.
  3. The concerns notice informs the publisher about the defamatory imputations.
  4. The concerns notice must outline the serious harm caused.
  5. The concerns notice should include a copy of the publication (if possible).

So, the requirements for a defamation concerns notice are that it must be in writing, contain a copy of the publication (if possible), the location of the publication (if possible), outline the serious harm, and identify the defamatory imputations.

All relatively straightforward, but what is a defamatory imputation?

What is a Defamatory Imputation?

The Defamation Act 2005 does not define what is defamatory or how the meaning of the matter should be interpreted, leaving those issues to be determined in accordance with the case law.

The Cambridge Dictionary defines “imputation” to mean:

a suggestion that someone is guilty of something or has a particular bad quality.

In the case of Hall-Gibbs Mercantile Agency Ltd v Dun [1910] HCA 66 there is a discussion relevant to the definition of “imputation” in the context of defamation law. Griffith C.J., in the judgment, clarifies the meaning of “imputation” as used in defamation law, and says:

I am unable to see any reason for so limiting the meaning of the word “imputation.” “Impute” is an ordinary English word, and, as I understand it, is properly used with reference to any act or condition asserted of or attributed to a person.

To impute something to someone is to suggest they are responsible for it, or that it motivates their actions, or as coming from that person.  This definition is broad and encompasses both positive and negative attributions.

Also, this judgment emphasises that if the act or condition imputed is such that the plaintiff’s reputation is likely to be injured by it, or the plaintiff is likely to be injured in their profession or trade, then, according to Queensland law, it is considered defamatory and constitutes an actionable wrong.

In Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6 the High Court of Australia discussed the definition of “imputation” within the context of defamation law. The court clarified that an imputation concerns any statement about a person (or entity) that could potentially injure their reputation, their profession or trade, or cause them to be shunned, ridiculed, or despised.

An imputation can be expressed directly, by insinuation, or by irony. The key question is whether the matter published is likely to harm the reputation of the person or entity in question or injure them in their professional or trade capacity.

In essence:

  1. Imputations in defamation refer to suggestions or assertions attributed to a person, which may imply guilt or a particular bad quality.
  2. “Imputation” has a broad meaning, encompassing any act or condition asserted of or attributed to a person, regardless of whether these attributions are positive or negative.
  3. An imputation becomes relevant in defamation law if it has the potential to injure the plaintiff’s reputation or to harm them in their profession or trade.
  4. Imputations can be conveyed directly, through insinuation, or by irony, focusing on whether the published content is likely to negatively impact the person’s reputation or professional standing.
  5. The essential consideration in defamation law regarding imputations is whether they suggest the person is guilty of something or possess a negative quality that could damage their reputation or professional life.

Therefore, once you have drafted this compliant document, then it must be given to the publisher.

Serving or Sending A Concerns Notice

A concerns notice is sent as a letter to the publisher of the defamatory publication.

Section 44 of the Defamation Act states:

(1) For the purposes of this Act, a notice or other document may be given to a person (or a notice or other document may be served on a person)—
(a) in the case of a natural person—
(i) by delivering it to the person personally; or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document; or
(iii) by sending it by facsimile transmission to the facsimile number of the person; or
(iv) by sending it by email to an email address specified by the person for the giving or service of documents.

To “give” or “serve” a defamation concerns notice, it can be “given” or “served” by:

  1. Sending it by post.
  2. Sending it by Fax.
  3. Sending it by email; or
  4. Giving it to them personally.

Giving a concerns notice is a vital and very important step in a defamation proceeding.

The Importance of a Defamation Concerns Notice

The uniform defamation laws in Australia, which aim to unify defamation legislation across the country, all mandate the submission of a concerns notice by an aggrieved party to the alleged defamer. This notice must detail the specific defamatory statements and the serious harm caused, as identified above.

The giving of a concerns notice is compulsory, and a pre-requisite to commencing defamation proceedings.  Section 12B(1) of the Defamation Act states:

(1) An aggrieved person cannot commence defamation proceedings unless—
(a) the person has given the proposed defendant a concerns notice in respect of the matter concerned; and
(b) the imputations to be relied on by the person in the proposed proceedings were particularised in the concerns notice; and
(c) the applicable period for an offer to make amends has elapsed.

An aggrieved person cannot commence defamation proceedings unless they have given the proposed defendant a concerns notice.

In Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323, the plaintiff’s defamation claim was dismissed due to the absence of a properly issued defamation concerns notice. As a consequence, the court, referencing the mandatory provisions of the Defamation Act, determined that Hooper had not met the necessary pre-filing requirements. This procedural non-compliance led to the summary dismissal of the defamation aspects of her claim.

The Court said at [85]:

In my view, the various deficiencies identified by Mr Ward, which can be summarised as follows … The failure to serve a concerns notice prior to institution of proceedings; and The failure to provide specifics of the actual defamatory imputations made against Ms Mannik and Ms Jones … are of such fatal moment to Ms Hooper’s defamation action that the only conclusion which is open to the Court is that these aspects of her claim have no prospects of success because of their incurable deficiencies.

It is vital that you do not commence proceedings without issuing a valid concerns notice.

Use of a Concerns Notice by Corporations

In the state Defamation Acts, the use of a concerns notice by corporations is structured around specific provisions that aim to encourage the resolution of defamation disputes without litigation.

A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an “excluded corporation” at the time of the publication.

Excluded Corporations

The definition of “excluded corporations” is provided in section 9 of the Defamation Act. This section specifies the criteria that distinguish certain corporations as eligible to bring a defamation action. According to Section 9:

(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.
(2) A corporation is an excluded corporation if—
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators; or
(b) it has fewer than 10 employees and is not an associated entity of another corporation;
and the corporation is not a public body.

Therefore, an excluded corporation is one that either does not seek financial gain for its members, or has fewer than 10 employees, and is not associated with another corporation. Public bodies do not qualify as excluded corporations.

As such, the Defamation Act specifies that certain corporations, termed “excluded corporations,” can utilise defamation concerns notices.

Serious Harm Element for Excluded Corporations

Section 10A of the Defamation Act says:

(1) It is an element (the “serious harm element”) of a cause of action for defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.
(2) For the purposes of subsection (1), harm to the reputation of an excluded corporation is not serious harm unless it has caused, or is likely to cause, the corporation serious financial loss.

This is easy to understand – a company must incur serious financial losses to qualify as serious harm, such as some fake reviews on Google for example.

Also, as above, following on from this, section 12A(1)(v) says:

(1) For the purpose of this Act, a notice is a “concerns notice” if … (a) the notice … (v) for an aggrieved person that is an excluded corporation – also informs the publisher of the financial loss that the corporation considers to be serious financial loss caused, or likely to be caused, by the publication of the matter in question.

As you can see, there are a few other elements if the aggrieved is a company.

Further Particulars Notice in Non-Compliant Concerns Notice

Section 12A(3) to (5) of the Defamation Act state:

(3) If a concerns notice fails to particularise adequately any of the information required by subsection (1)(a)(ii), (iii), (iv) or (v), the publisher may give the aggrieved person a written notice (a further particulars notice) requesting that the aggrieved person provide reasonable further particulars as specified in the further particulars notice about the information concerned.
(4) An aggrieved person to whom a further particulars notice is given must provide the reasonable further particulars specified in the notice within 14 days (or any further period agreed by the publisher and aggrieved person) after being given the notice.
(5) An aggrieved person who fails to provide the reasonable further particulars specified in a further particulars notice within the applicable period is taken not to have given the publisher a concerns notice for the purposes of this section.

Failing to provide adequate particulars in a defamation concerns notice and subsequently not addressing a request for further particulars carries significant risks for the aggrieved party, as detailed in the Defamation Act 2005 of Queensland. Here’s what could happen:

  1. Invalidation of the concerns notice – If the aggrieved party does not supply the requested further particulars within 14 days (or an agreed extended period), their initial concerns notice is considered invalid for the purposes of the legislation. This means the legal requirement of issuing a concerns notice before initiating defamation proceedings is not met.
  2. Inability to Commence Legal Proceedings – Since a valid concerns notice is a precondition for filing defamation proceedings, failure to adequately respond to a request for further particulars effectively bars the aggrieved party from starting legal proceedings. This could significantly impact their ability to seek redress for the defamation.
  3. Potential Loss of Leverage – The process of issuing a concerns notice and the potential for amends offers an opportunity for resolution without court intervention. Inadequate particulars could forfeit this chance, removing a key leverage point for the aggrieved party to negotiate corrections, apologies, or other forms of redress directly with the publisher.
  4. Delay in Resolution – Even if the aggrieved party eventually provides the necessary particulars, the delay caused by the need to issue a further particulars notice and the subsequent response time can prolong the dispute, delaying potential resolution and possibly escalating the conflict further.

Section 10A(7) of the Defamation Act states:

Without limiting subsection (5), the judicial officer may determine the serious harm element is not established on the pleadings without the need for further evidence if satisfied that the pleaded particulars are insufficient to establish the element.

Why Serve a Defamation Concerns Notice?

There are a number of reasons why an aggrieved person should send a defamation concerns notice to a publisher of defamatory material, including:

  1. Get an offer to make amends.
  2. Asking for an apology and/or retraction.
  3. Open negotiations between the parties.
  4. Commencing defamation proceedings.

We will expand on these points a little more below.

Offer to Make Amends

The notice gives the publisher a chance to address the aggrieved party’s concerns, which can include retracting the defamatory content, publishing a clarification or apology, or offering compensation.  Section 13 of the Defamation Act states:

(1) The publisher may make an offer to make amends to the aggrieved person.
(2) The offer may be—
(a) in relation to the matter in question generally; or
(b) limited to any particular defamatory imputations that the publisher accepts that the matter in question carries.
(3) If 2 or more persons published the matter in question, an offer to make amends by 1 or more of them does not affect the liability of the other or others.
(4) An offer to make amends is taken to have been made without prejudice unless the offer provides otherwise.

These actions can mitigate the harm caused to the aggrieved party and potentially avoid further legal action.

Asking for an Apology

Concerns notices often include requests for apologies from the aggrieved party to the publisher. It’s crucial to understand that such apologies do not constitute a direct or indirect acknowledgment of the publisher’s liability for the content.

Furthermore, apologies are not admissible as evidence of liability in civil court proceedings. The implications of apologies in defamation cases are elaborated in section 20 of the Defamation Act which says:

(1) An apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person—
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter; and
(b) is not relevant to the determination of fault or liability in connection with that matter.
(2) Evidence of an apology made by or on behalf of a person in connection with any defamatory matter alleged to have been published by the person is not admissible in any civil proceedings as evidence of the fault or liability of the person in connection with that matter.

Open Negotiations Between the Parties

A concerns notice initiates a formal dialogue between the aggrieved party and the publisher. It provides an opportunity for the matter to be resolved without proceeding to court, which can be beneficial for both parties in terms of saving time, resources, and the potential negative publicity associated with a legal dispute.

By sending a defamation concerns notice, the aggrieved party formally documents their grievances and the harm they believe the publication has caused. This can signal to the publisher the seriousness of the issue and the potential for legal action if the matter is not resolved.

Commencing Defamation Proceedings for Damages

If all of the above fails, and the publisher does not respond, or actually double’s down, then the only option left is to commence legal action for defamation.

Under the Defamation Act issuing a concerns notice is a mandatory step before commencing defamation proceedings, as per Hooper v Catholic Family Services above.

If all else fails, you may have to make a defamation claim.

Making a Defamation Claim in Australia

To bring legal action for defamation the plaintiff must be an individual or a company with fewer than 10 employees and is not a public body.  Proceedings are commenced by claim and statement of claim.

The maximum amount of damages allowable to be claimed for non-economic loss is $250,000.00 contained in section 35(1) of the Defamation Act which says:

… the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time …

These amounts are adjusted in the Queensland Government Gazette.  In Queensland Government Gazette Vol. 390, No. 24, dated Friday 3 June 2022, it says:

I, Shannon Fentiman, Attorney-General and Minister for Justice and Minister for Women and Minister for the Prevention of Domestic and Family Violence, declare, in accordance with section 35(3) of the Defamation Act 2005, that on and from 1 July 2022, the maximum amount of damages that may be awarded for non-economic loss in defamation proceedings is $443,000.

Therefore, the adjusted amount is currently $443,000.00.  You are also allowed to claim financial losses and in extreme cases, aggravated damages.

For more on defamation proceedings – Defamation in Queensland

Who can Bring an Action for Defamation in Australia?

The requirements for bringing an action for defamation in Australia are:

  1. You must be a person or an excluded corporation.
  2. There must have been a publication about you which included defamatory imputations.
  3. The publications must have named you (or strong inference).
  4. The defamatory imputations must cause serious harm.
  5. You must have sent a concerns notice.

If you tick all of the above, then you can bring a defamation claim in Australia.

Why Take Action for Defamation?

Taking action for defamation is often considered for several compelling reasons, each motivated by the desire to address and rectify the harm caused by false or misleading information and statements that damage a person’s or entity’s reputation. Here are some key reasons why individuals or entities decide to take legal action for defamation:

  1. Restoration of Reputation – Defamation can cause significant harm to an individual’s or organisation’s reputation. Legal action can serve to clear one’s name, restore public perception, and rectify any false narratives that have been disseminated.
  2. Financial Compensation – Defamation can result in financial losses, directly or indirectly, such as loss of business, employment opportunities, or personal distress. Legal action can lead to compensation for these losses, providing a form of redress for the aggrieved party.
  3. Legal Precedent – Successfully challenging defamation sets a legal precedent and can contribute to a broader understanding and enforcement of defamation laws, potentially benefiting others who might face similar situations in the future.
  4. Personal Vindication – Beyond financial compensation and reputation restoration, the process can offer personal vindication for the aggrieved party, affirming their stance against the unjust harm caused by the defamation.
  5. Prevention of Further Harm – Initiating legal proceedings can act as a deterrent against further defamatory acts by holding the perpetrator accountable. It sends a clear message to the defamer and others that spreading falsehoods will have serious consequences.
  6. Public Correction – Legal proceedings often result in the public correction of the false statements, either through retractions published by the offending party or through public acknowledgment of the court’s findings, helping to alleviate some of the damage done.
  7. Social Responsibility – For some, taking action against defamation is seen as a social responsibility to combat misinformation and protect the integrity of public discourse, especially in cases where the defamatory statements could have widespread or harmful societal impacts.

Choosing to take legal action for defamation involves careful consideration of the potential outcomes, costs, and emotional toll it may entail. However, for many, the opportunity to address and correct the harm caused by defamation outweighs these challenges.

Time Limit for Issuing a Concerns Notice

You need to factor the limitation of actions into your time calculation.

Section 10AA(1) of the  Limitation of Actions Act 1974 states:

(1) An action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

This means that you must commence proceedings in Court within one (1) year from the date of the publication of the matter.  So, it is best practice to get the concerns notice sent to the publisher as soon as possible.

However, if the concerns notice is sent late, or close to the one (1) year limitation date, then Section 10AA(2) and (3) of the  Limitation of Actions Act 1974 state:

(2) The 1-year limitation period referred to in subsection (1) is taken to have been extended as provided by subsection (3) if a concerns notice is given to the proposed defendant on a day (the “notice day”) within the period of 56 days before the limitation period expires.
(3) The limitation period is extended for an additional period of 56 days minus any days remaining after the notice day until the 1-year limitation period expires.

This gives you more time to get the defamation concerns notice served, before the limitation date expires.

For example, if a concerns notice is issued 7 days prior to the expiration of the limitation period with all the required information, there will be 6 days remaining after the day the notice is served until the limitation period ends. As a result, this subsection would effectively prolong the limitation period by an additional 50 days, calculated as 56 days minus the 6 remaining days.

However, section 12B(3) of the Defamation Act allows for some small leeway:

(3) The court may grant leave for proceedings to be commenced despite non-compliance with subsection (1)(c), but only if the proposed plaintiff satisfies the court:
(a) the commencement of proceedings after the end of the applicable period for an offer to make amends contravenes the limitation law; or
(b) it is just and reasonable to grant leave.
Also, it is possible for a Court to grant leave to extend the time for another three (3) years. Section 32A(2) of the Limitation of Actions Act 1974 states:
(2) The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

Rather than taking a risk with extensions, get your concerns notice drafted and served asap.

Get Legal Advice

Seeking legal advice for defamation actions from defamation lawyers is crucial for several reasons:

  1. Complexity of Defamation Law – Defamation law is intricate, with nuances that vary by jurisdiction. Legal professionals can navigate these complexities, ensuring that actions are taken within legal frameworks and requirements.
  2. Compliance with Legal Requirements – Legal proceedings for defamation require adherence to specific procedural steps, such as the issuance of a concerns notice within certain time frames and in a particular manner. Lawyers ensure that all legal requirements are met to avoid jeopardising the case.
  3. Court Representation – If the case proceeds to court, having skilled legal representation is indispensable. Lawyers experienced in defamation law can advocate effectively on behalf of their clients, presenting evidence and arguments to support their case.
  4. Evidence Collection and Preservation – Properly collecting and preserving information and evidence is essential in defamation cases. Legal professionals can advise on the types of evidence needed and how to legally obtain and preserve them.
  5. Financial Implications – Defamation cases can be costly. Legal advice is important for understanding the potential costs involved, including legal fees, court costs, and possible damages, and for evaluating whether the potential outcomes justify these expenses.
  6. Limitation Periods – Understanding the limitation periods for filing defamation claims is crucial. Legal advice can help ensure that actions are taken promptly to avoid missing deadlines that could bar the claim.
  7. Negotiation and Settlement – Many defamation disputes are resolved through negotiation and settlement before reaching trial. Lawyers can negotiate on behalf of their clients to reach a satisfactory resolution, potentially saving time, money, and reputational harm.
  8. Risk Assessment – Lawyers can provide a realistic assessment of the risks involved in pursuing a defamation action, including potential costs, the impact of litigation on personal or business reputation, and the emotional toll.
  9. Strategic Guidance – An experienced defamation lawyer can provide strategic advice on the best course of action, whether it’s sending a concerns notice, negotiating a settlement, or proceeding to court. They can help assess the merits of a case, potential defences to defamation, and the likelihood of success.

In summary, seeking legal advice for defamation actions is essential for navigating the legal system effectively, making informed decisions, and maximising the chances of a favourable outcome.

Defamation Concerns Notices – Key Take Aways

Defamation law protects individuals and certain organisations from false or damaging information or statements that negatively affect their reputation.

It combines common law and statutory provisions, requiring the publication to harm the person’s reputation significantly, lowering their estimation in society or leading to their shunning.

Recent reforms have defined four key elements of defamation:

  1. Publication to a third party.
  2. Identification of the aggrieved party.
  3. The publication being defamatory; and
  4. the publication likely causing serious harm.

This comprehensive definition includes a wide range of media, from traditional print to digital content.

A crucial aspect of defamation law is the requirement that the defamation must cause or likely cause “serious harm” to the aggrieved person’s reputation. Various factors, including the publication’s reach and impact, are considered to determine if this threshold is met.

Serving or sending a concerns notice as the first compulsory step in addressing defamation, a concerns notice informs the publisher of the defamatory content and the harm it has caused. It must detail the defamatory imputations and the serious harm or financial loss incurred, thereby initiating a formal process to resolve the issue without litigation.

Failure to properly issue a concerns notice or to provide detailed particulars when requested can invalidate the notice and hinder the ability to commence defamation proceedings. This highlights the procedural significance of the concerns notice in the defamation resolution process.

The complexities of defamation law, including its procedural nuances and the strategic considerations involved in filing a claim, underscore the importance of seeking legal advice. Legal professionals can navigate the complexities, ensure compliance with legal requirements, and offer strategic guidance tailored to the specific circumstances of the defamation issue.

In conclusion, concerns notices serve as an essential initial step in the defamation resolution process, designed to facilitate an opportunity for amends and avoid litigation.

Understanding the procedural requirements and strategic implications of issuing a concerns notice is crucial for anyone seeking to address defamation effectively.

Concerns Notice in Defamation Law FAQ

Welcome to our FAQ section on defamation law in Australia.

Here, you’ll find concise answers to common questions about navigating the complexities of defamation, from issuing defamation concerns notices to understanding the legal framework that governs defamation cases.

What is a Concerns Notice?

A concerns notice is a formal written notice to a publisher of a defamatory publication. It puts the publisher on notice that their defamatory statement is defaming you. If someone has made a defamatory publication about you, the first step is sending them a concerns notice.

How long do they have to respond to a concerns notice?

The recipient of a concerns notice typically has 28 days to respond. This period allows the publisher to consider the allegations of defamation, assess the content in question, and decide on an appropriate course of action, which may include making an offer to make amends. The specific timeframe can vary based on jurisdiction within Australia, so it’s important to consult the relevant defamation legislation or seek legal advice.

How do you write a concern notice?

A defamation concerns notice should be written clearly and include specific details about the defamatory publication. It must identify the statements or material considered defamatory, explain why they are defamatory, and outline the serious harm caused or likely to be caused by the publication. The notice should also specify the location of the publication (e.g., webpage address) and, if possible, include a copy of the material. It’s advisable to seek legal advice to ensure the notice meets all legal requirements.

What is an example of defamation?

An example of defamation could be a blog post falsely accusing a person of committing a crime they did not commit, leading to damage to their reputation and standing in the community. If the post is seen by others and causes the person to be shunned, lose job opportunities, or suffer harassment, it could be considered defamatory. The key elements are the falsity of the accusation and the harm caused to the person’s reputation.

What is defamation law Australia?

Defamation law in Australia is designed to protect individuals and certain entities from false or damaging statements that harm their reputation. It balances the protection of reputation with the freedom of expression. Australian defamation law includes both statutory law, primarily the Defamation Act 2005 (as amended by the states and territories), and common law principles. It sets out the elements of a defamation claim, defences available, and the process for seeking redress, including issuing a concerns notice as a preliminary step.

What are the 3 elements of defamation?

The three core elements of defamation are: 1) A defamatory statement was made by the defendant; 2) The statement was published to a third party; and 3) The statement caused, or is likely to cause, harm to the plaintiff’s reputation. In some jurisdictions, including Australia, a fourth element has been added, requiring the plaintiff to prove that the publication caused or is likely to cause “serious harm” to their reputation.

What is the common law in Australia for defamation?

The common law in Australia for defamation is based on information and principles developed through court decisions over time, alongside statutory laws. It focuses on protecting individuals’ reputations from unjustified attack while balancing freedom of speech. Common law defines what constitutes a defamatory statement, establishes the basis for determining if harm has been done to someone’s reputation, and outlines possible defences to defamation claims, such as truth, opinion, and privilege.

What is imputation in defamation?

Imputation in defamation refers to the underlying meaning or inference drawn from a defamatory statement, suggesting something negative about a person’s character, reputation, or conduct. It’s not just about the literal words used but also about what those words imply about the individual. An imputation can damage someone’s reputation by suggesting they are dishonest, involved in criminal activity, or otherwise disreputable, even if not explicitly stated.

Is defamation hard to prove in Australia?

Proving defamation in Australia can be challenging, as the plaintiff must satisfy all elements of a defamation claim, including the publication of a defamatory statement, identification, and serious harm to reputation. The requirement to prove “serious harm” adds a significant threshold. Additionally, defendants have several defences available, such as truth, honest opinion, and qualified privilege, which can make it difficult for plaintiffs to succeed.

Can I sue someone for defamation of character Australia?

Yes, you can sue someone for defamation of character in Australia if you believe they have made false and damaging statements about you that have harmed your reputation. You must be able to prove the essential elements of defamation and act within the time limits set by law. It’s important to issue a defamation concerns notice as a first step and consider seeking legal advice to navigate the complexities of defamation law.

How do you respond to a defamation letter?

Responding to a defamation letter typically involves carefully reviewing the allegations, assessing the content in question, and considering any potential defences or justifications for the statements made. It’s advisable to seek legal advice to understand your rights and obligations and to formulate a response that may include an apology, retraction, offer to make amends, or a defence against the claims. The response should be timely and address the specific concerns raised.

What is a notice of complaint for defamation?

A notice of complaint for defamation, often referred to as a concerns notice, is a formal written notification sent to the publisher of a defamatory statement. It outlines the defamatory content, explains why the content is considered defamatory, and details the harm caused by the publication. It serves as a preliminary step before legal proceedings, giving the publisher an opportunity to make amends and potentially avoid litigation.

How do you serve a concerns notice?

A concerns notice can be served in several ways, including personal delivery, mail, email, or fax, depending on the preferences and contact details of the publisher. The method chosen should ensure the notice is received by the publisher. It’s important to follow the specific requirements outlined in the relevant defamation legislation, including providing sufficient details about the defamatory publication and the harm caused.

What is the time limit for issuing a concerns notice?

The time limit for issuing a concerns notice is not explicitly set; however, defamation actions must generally be commenced within one year from the date of publication of the defamatory material. Issuing a defamation concerns notice is a prerequisite to filing a defamation claim, so it should be done as soon as possible after the defamatory publication is discovered to ensure compliance with the limitation period for defamation actions.

Useful Defamation Links

  1. New South Wales – Defamation Act 2005(NSW).
  2. Northern Territory – Defamation Act 2005(NT).
  3. Queensland – Defamation Act 2005(Qld).
  4. South Australia – Defamation Act 2005(SA).
  5. Tasmania – Defamation Act 2005(Tas).
  6. Victoria – Defamation Act 2005(Vic).
  7. Western Australia – Defamation Act 2005(WA).

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