I’ve Received a Concerns Notice, What Do I Do?

I’ve Received a Concerns Notice – How to Respond

Are you someone who has recently received a concerns notice from another party and is struggling to understand the process of forming and sending a response?

If so, you may feel very stressed about this situation, as a concerns notice is a serious legal document that can have equally serious consequences if you do not address it effectively.  It can be very difficult to form an appropriate response to a concerns notice, especially if this is the first time you have dealt with one before.

When you are accused of defamation, there are several ways that you can react and respond, which will generally depend on the details of the particular situation you’re in. It is important to remain calm and to think out your response before sending it, as an emotional response will generally not be the best option for your matter.

But how can I form an appropriate and effective response to a concerns notice depending on the circumstances of my matter?

In this article our Queensland defamation lawyers will provide you with a basic guide to what a concerns notice is, what it entails, and the several ways that you may choose to respond to one.

This article is part II to our previous article – Sending a Concerns Notice – Complete Guide

Understanding the Defamation Acts in Australia

The core of Australia’s defamation laws is encapsulated in the various Defamation Acts 2005, which were adopted with variations across different states and territories to ensure a degree of uniformity.

These laws provide a framework for addressing harm caused by defamatory statements, which are defined as statements that could damage a person’s reputation in the eyes of reasonable members of the community.

The Acts outline what constitutes a defamatory statement, defences available to defendants (such as truth, public interest, and fair comment), and the process for making and responding to allegations of defamation, including the offer to make amends mechanism.

The legislation aims to make the defamation law process more accessible and less costly, encouraging parties to resolve disputes without resorting to prolonged litigation.

However, the dynamic nature of communication in the digital age continually tests these laws, necessitating ongoing revisions and interpretations to adapt to new challenges.

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

What is a Concerns Notice?

The first question that you may have in relation to responding to a concerns notice is what it is and what it does?

A concerns notice is a formal written notice sent to the publisher of allegedly defamatory material in Australia pursuant to section 12A of the Defamation Act, serving as the first step in the process of resolving defamation.

It provides the publisher with the opportunity to respond and make amends and is a pre-requisite before any potential legal action is taken for defamation.

The notice identifies the specific defamatory statements, explains why they are considered defamatory, and outlines the harm caused to the aggrieved person’s reputation.

It gives the publisher the chance to respond with an “offer to make amends“, which can include retracting the statements, issuing an apology, or offering compensation. If the recipient of the concerns notice makes a reasonable offer that is rejected, it can provide them with a defence against any subsequent defamation proceedings in Court, as the court will consider whether the offer should have been accepted.

Alternatively, if the party receiving the concerns notice believes it is unjust or unreasonable, it provides them with an opportunity to form a defence and seek legal advice before any ensuing legal action that may come their way.

The concerns notice process aims to resolve defamation disputes quickly and avoid costly litigation, by providing an opportunity for the recipient to handle the matter.

A concerns notice is an important legal document in Australian defamation law that allows both of the involved parties to manage the resolution process and potentially avoid any potential legal action if possible and reasonable to both parties!

We have a very detailed article here – Sending a Concerns Notice – Complete Guide

What is Defamation?

Now that we have discussed what a concerns notice is when dealing with defamation, you may be wondering what defamation is if you have not interacted with it before.

The term ‘defamation’ refers to the legal concept of harming a person’s reputation through the publication of false statements.

The key elements are the publication of the defamatory material to at least one other person, identification of the allegedly defamed party as the subject, a defamatory meaning that lowers the party’s reputation in the eyes of ordinary, reasonable members of the community, and proof that the statements have caused or are likely to cause serious harm to the other parties reputation (false sexual allegations, for example).

When considering defamation in Australian law, the Defamation Act 2005 is the key piece of legislation to look to, which was formed to retain much of the common law principles around defamation while introducing new provisions for enhanced protection for victims and defendants alike, such as the serious harm requirement.

There are several defences that are established under law that may provide defending parties with a way to prove that they did not defame the other party, with defendants able to raise various defences such as truth, honest opinion, or qualified privilege.

The amount of damages awarded is generally decided by the courts in defamation proceedings, which consider both legislated limits on damages and the parties’ conduct when awarding costs.

Check out our article here – Defamation in Queensland

How Long Do You Have to Respond to a Concerns Notice?

You may be wondering how long you have to respond to a concerns notice when you receive it? This is an important consideration, as there is a limit that you must meet.

The recipient of a concerns notice in Australia typically has 28 days to respond.

Section 14 of the Defamation Act 2005 (Qld) (“the Defamation Act”) says:

(1) An offer to make amends can not be made if –
(a) the applicable period for an offer to make amends has expired; or
(b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

 
(2) For the purposes of this Act, the “applicable period” for an offer to make amends is—
(a) if the aggrieved person has provided further particulars in response to a further particulars notice about a concerns notice after 14 days have elapsed since the concerns notice was given—14 days since the publisher was given the further particulars; or
(b) in any other case—28 days since the publisher was given a concerns notice by the aggrieved person.

This response period serves an important purpose, as it allows the recipient to carefully consider the allegations of defamation outlined in the concerns notice.

This involves reviewing the specific statements identified as defamatory, assessing the content in question, and deciding the route of response that they will pick.

How Can I Respond to a Concerns Notice?

Now that you are aware of what a concerns notice is and what it means, you may be wondering what the best ways to respond are.

If you have received a concerns notice, there are a range of ways that you may choose to respond to a concerns notice, which will vary depending on the matter itself and the extent of reasonableness that you consider the notice to be. These can include:

1. Determine if the concerns notice is valid.
2. Request more information.
3. Offer to make amends.
4. Make a retraction.
5. Negotiate a settlement.
6. Get legal advice.
7. Form a defence.

We will explain these in more detail below.

Is the Concerns Notice Valid?

Before you take any action after you have received a concerns notice, it is vital to assess what your stance on the matter is and how that will affect your response. When responding to a concerns notice, you may effectively consider your stance on the matter by following several key steps.

Firstly, thoroughly assess the specific allegations of defamation outlined in the notice, understanding the exact statements deemed defamatory and the reason behind this accusation.  If the publication is not defamation, then they should never have issued a concerns notice in the first place.

Next, you should evaluate the evidence supporting the allegations so you can decide whether the statements are facts or opinions and have caused significant harm to the other party’s reputation.

With this information, you can effectively decide whether you agree with the allegations, are open to offering an apology or correction, or believe you have a valid defence against the defamation claim.

You should consider seeking legal advice through this process, as a lawyer can help you to understand your best possible outcome and how you can go about achieving it.

Now that you understand the stance you are taking, you may choose to provide one of the following responses.

The requirements for bringing an action for defamation in Australia (and issuing a concerns notice) are:

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

If the person can tick all of the above, then they can bring a defamation claim against you.

Request More Information (Further Particulars Notice)

The first way that you can respond if you have received a concerns notice is by requesting more information from the other party.

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.

You may choose to politely request additional details about the concerns that have been raised if you feel that you were not provided with enough. This might include asking for specifics on the nature of the complaint, the timeline of events, or any supporting documentation.

By gathering more information, you’ll be better equipped to address the concerns effectively and generally understand the matter at hand. It’s also a good idea to express your willingness to work collaboratively to resolve the issue and clear up the matter together.

You should try to avoid coming across as defensive or confrontational, as this can escalate the situation and create a hostile environment that lacks communication. Instead, try to focus on establishing open communication and a constructive dialogue.

With the right approach, you can use this as an opportunity to better understand the problem and work towards a mutually beneficial solution.

Offer to Make Amends

Another way that you may decide to respond after you have received a concerns notice is with an offer to make amends.

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.

If this is the approach you choose, you must be aware that you are taking to blame for the defamation and acknowledging your fault in the matter.

Begin by acknowledging the concerns that have been raised and expressing your honest regret for any inconvenience or harm caused. You should then outline specific steps you are willing to take to resolve the situation.  This might include offering some form of compensation.

Additionally, you can propose changes to your actions to prevent similar issues from occurring in the future.

After you have received a concerns notice, it’s crucial to avoid making excuses or shifting blame and instead focus on taking responsibility and demonstrating your commitment to resolving the matter.

By offering a genuine and constructive solution, you can show your willingness to make things right and preserve the relationship!

The content of offer to make amends can be anything, however section 15 of the Defamation Act has some requirements and suggestions.

Withdrawal of Offer to Make Amends

Section 16(1) of the Defamation Act states:

(1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person.

Withdrawing an offer to make amends in defamation proceedings can have several risks and implications, both legal and strategic. The offer to make amends is a mechanism available in all jurisdictions as part of defamation law, allowing the defendant to offer an apology, correction, and sometimes compensation to the claimant as a way to mitigate or avoid further legal action.

Below are some of the risks associated with withdrawing such an offer:

1. Impact on Damages – If the case proceeds to trial, the fact that an offer to make amends was made and then withdrawn might influence the amount of damages awarded. Courts may consider the defendant’s conduct throughout the proceedings, including their attempts (or lack thereof) to mitigate harm.
2. Increased Costs – Continuing with litigation after withdrawing an offer to make amends can significantly increase legal costs for both parties. This includes solicitors’ fees, court costs, and potentially the costs of a trial.
3. Loss of a Potential Resolution – Withdrawing an offer to make amends may eliminate a potential path to resolving the dispute without further litigation. This could lead to a continuation of legal proceedings, which might have been avoidable.
4. Reputational Damage – The act of making an offer to make amends can sometimes be seen as a goodwill gesture, aiming to rectify the harm caused by the defamation. Withdrawing the offer might harm the defendant’s reputation further, especially if the withdrawal is perceived as an unwillingness to acknowledge the harm caused.
5. Strategic Disadvantages – Withdrawing an offer may also have strategic implications for the defence. It could signal to the claimant and the court that the defendant is less confident in their position or unwilling to engage in alternative dispute resolution methods.

It’s important for defendants considering withdrawing an offer to make amends to carefully weigh these risks and consult with legal advice from qualified solicitors.

The decision should be based on a strategic assessment of the legal and reputational implications, as well as the likelihood of achieving a more favourable outcome through continued litigation.

Failure to Accept a Reasonable Offer

The effect of failure to accept reasonable offer to make amends in outlined at section 18 of the Defamation Act, which says:

(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—
(a) the publisher made the offer as soon as reasonably practicable after the publisher was given a concerns notice in respect of the matter (and, in any event, within the applicable period for an offer to make amends); and
(b) the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c) in all the circumstances the offer was reasonable.

In plain English, if a publisher quickly tries to fix a situation where they might have defamed someone by making a fair offer to apologise and/or compensate the harmed person, and they are truly ready to follow through with that offer, they can argue in court proceedings that they shouldn’t be held liable for defamation if the person who felt wronged didn’t accept their offer to make things right.

Accepting a Reasonable Offer and Ending Defamatory Action

The effect of acceptance of an offer to make amends in outlined at section 17 of the Defamation Act, which says:

(1) If the publisher carries out the terms of an offer to make amends (including payment of any compensation under the offer) that is accepted, the aggrieved person can not assert, continue or enforce an action for defamation against the publisher in relation to the matter in question even if the offer was limited to any particular defamatory imputations.

If someone who published potentially defamatory information agrees to apologise and possibly pays compensation (as they offered to do), the person who was harmed by the information cannot take them to court for defamation proceedings regarding that specific issue anymore.

However, a court may decide that the person who made the apology and/or compensation must also cover any reasonable legal or other expenses the aggrieved person had because of the defamation issue.

The court that can make these orders depends on whether the aggrieved person has already started legal action for defamation. If they have, the court where the action was started can make the order. If not, the Supreme Court can make the order.

Make a Retraction of the Publication

Another way that you may decide to respond if you have received a concerns notice is by making a retraction.

Start by acknowledging the specific statement or claim that you wish to retract, and clearly state that you are retracting it. Provide a brief explanation for the retraction, such as any new information that may have come to light or a mistake in the original statement.

You should avoid making excuses and instead focus on taking responsibility for the error and any harm it has caused. It’s also a good idea to express your regret for any inconvenience or harm caused by the original statement.

Finally, show your commitment to ensuring issues of this nature are an issue of the past. By handling the retraction in a straightforward and transparent manner, you can demonstrate your integrity and rebuild trust with the other party.

If Defamation, Try to Negotiate a Settlement

Many defamation claims are settled in private, without the need for court intervention. These settlements often occur in a private conference, possibly with legal representatives, and can be conducted face-to-face or over the phone. This method is especially common for disputes that haven’t been widely publicised.

Mediation is typically used for more complex cases and involves an experienced mediator (often a senior barrister). It can be costlier than other methods but is less expensive and quicker than a court trial.

Mediation involves both parties and their lawyers attempting to negotiate a settlement, guided by the mediator’s advice, which may lead to surprising and agreeable outcomes.

If you have received a concerns notice, alternative dispute resolution methods are important for resolving defamation claims outside of court, focusing on amicable settlements that can save time, reduce costs, and potentially lead to more satisfactory outcomes for all parties involved.

Form a Defence to Defamation Claims

Another way that you may decide to respond to a concerns notice is by forming a defence against the accusations.  Some possible defences include:

The Defamation Act 2005 (Qld) contains a number of defences to defamation. These defences include (inter alia):

1. The Defence of absolute privilege.
2. The Defence of contextual truth.
3. The Defence of justification.
4. The Defence of qualified privilege.

If you wish to reject the accusations of defamation and provide a defence, you should begin by carefully reviewing the details of the concerns that have been raised and gathering any relevant evidence or documentation that supports your position.

In your response, clearly and concisely address each of the concerns, providing a logical and well-reasoned explanation for your actions or decisions. Avoid being defensive or confrontational, and instead focus on presenting a factual and objective case that you could use in the court if needs be.

If appropriate, if you have received a concerns notice you can also offer to provide additional information or to engage in further communication to resolve the issue. By taking a constructive and collaborative approach, you can demonstrate your commitment to addressing the concerns and forming an effective defence against the accusations of defamation.

We have a very detailed article here – Defending a Defamation Claim in Queensland

Get Legal Advice from Defamation Lawyers

If you have received a concerns notice saying you have published defamatory information, you should definitely consider hiring a lawyer to assist with your response.

Defamation law is complex, and a lawyer can provide great guidance on evaluating the structure of the claim, drafting an appropriate response, and negotiating a resolution.

They can ensure you meet all legal requirements, such as providing a timely and compliant offer to make amends if appropriate. Without that added legal expertise, you may make wrong moves that result in an outcome that does not suit you best!

Hire a lawyer to assist you when forming a response to a concerns notice; it can make a big difference!

Things to Consider After Receiving a Concerns Notice

Upon receiving a concerns notice, several factors need to be evaluated, such as:

1. Compliance with the formal requirements of the notice.
2. The necessity for more detailed explanations of the defamatory implication.
3. Whether the party raising the concern is an excluded corporation.
4. The expiration status of the time limit to initiate defamation action in Court.
5. The presence of the necessary components for a defamation claim.
6. The applicability of any legal defamation defences.
7. The appropriateness of proposing a remedy under the relevant legislation.
8. If applicable, the deadline for submitting such an offer, specifically, when the 28-day period concludes.

Thinking about these things can give you a good assessment of where you are legally and will assist you in making the decision on how to proceed.

Steps to take if Accused of Defamation

When faced with a defamation accusation through a concerns notice, there are several strategic steps you can take to address the situation effectively. Here’s a breakdown of the actions you can consider based on the information provided in this article:

1. Assess the Validity of the Concerns Notice – Begin by thoroughly reviewing the allegations of defamation within the notice. Understand the specific statements considered defamatory and the reasons behind these accusations. Determine whether the statements are factual or opinions and if they’ve caused significant harm to the claimant’s reputation. Decide on your stance: whether you agree with the allegations, are willing to apologise or correct, or believe you have a valid defence against the defamation claim.
2. Seek Legal Advice – Consult with a defamation lawyer to understand your rights, potential defences, and the best course of action. A lawyer can help navigate the complexities of defamation law and advise on the most appropriate response.
3. Request More Information – If the notice lacks details, politely request further clarification or supporting documentation from the claimant. This helps ensure you fully understand the allegations and can address them accurately.
4. Offer to Make Amends – Consider acknowledging the harm caused and offering a remedy, such as a retraction, apology, or compensation. This approach shows responsibility and a willingness to resolve the issue amicably.
5. Make a Retraction – If appropriate, formally retract the specific statements identified as defamatory, clarifying any misunderstanding or errors in the initial publication.
6. Negotiate a Settlement – Many defamation cases are resolved through negotiation or mediation, avoiding court proceedings. Consider engaging in discussions to reach an agreeable resolution for both parties.
7. Formulate a Defence – If you disagree with the allegations, prepare a defence that addresses the claims point by point. Collect evidence and documentation that supports your position and demonstrates the accuracy of your statements or the presence of a valid legal defence.
8. Consider the Timing – Be aware of the response deadline, typically 28 days in Australia, to ensure your reply is timely and compliant with legal requirements.

By following these steps, you can address a concerns notice with a balanced and informed approach, aiming for a resolution that mitigates the risk of legal action and upholds your rights and reputation.

Responding to a Concerns Notice FAQ

Welcome to our comprehensive FAQ section tailored specifically for understanding defamation law in Australia.

Here, we provide clear and concise answers to some of the most frequently asked questions regarding the defamation process responding to a concerns notice.

What is a concerns notice?

A concerns notice is a formal document that alerts someone they may have published defamatory material. It’s the first step in resolving defamation issues in Australia, identifying specific statements considered defamatory and why, aiming to give the publisher a chance to make amends before legal action is pursued.

What should I do if I receive a concerns notice?

If you receive a concerns notice, it’s important to review the document carefully, understand the defamation claims made against you, and assess the validity of these claims. It’s advisable to seek legal advice to understand your rights and options for responding, which could include making an offer to make amends, requesting more information, or preparing a defence.

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

Typically, you have 28 days to respond to a concerns notice in Australia. This timeframe allows you to carefully consider your response and seek legal advice if necessary. It’s crucial to adhere to this deadline to maintain your legal rights and options.

Can I request more information about the defamation claims made in a concerns notice?

Yes, you can request more detailed information if the concerns notice lacks specificity about the defamation claims. This can help you better understand the allegations and formulate an appropriate response. The request should be polite and aimed at clarifying the issues raised.

What does it mean to make an offer to make amends?

Making an offer to make amends involves acknowledging the harm caused by the defamatory statements and proposing actions to rectify the situation. This can include retracting statements, issuing apologies, or offering compensation. It’s a way to resolve the dispute amicably and potentially avoid litigation.

What happens if my offer to make amends is accepted?

If your offer to make amends is accepted and you fulfill the terms, the aggrieved party cannot proceed with defamation proceedings against you for the related issue. However, you might still be required to cover their reasonable legal expenses incurred during the process.

Is retracting a defamatory statement a good response to a concerns notice?

Retracting a defamatory statement can be an effective response to a concerns notice. It involves publicly withdrawing the statement and often includes an explanation or apology. This shows responsibility and can mitigate further harm to the aggrieved party’s reputation.

How can I negotiate a settlement if accused of defamation?

Negotiating a settlement often involves discussions between the parties, sometimes facilitated by legal representatives or a mediator. It’s a way to agree on terms to resolve the dispute without court intervention, focusing on rectifying the harm and possibly including financial compensation.

What defences are available if I decide to contest a defamation claim?

Defences against defamation include proving the truth of the statement, showing it was an honest opinion or comment, demonstrating it was published in the public interest, or under qualified privilege. The choice of defence depends on the specifics of your case and legal advice.

Should I get legal advice if I receive a concerns notice?

Yes, seeking legal advice is crucial when you receive a concerns notice. Defamation law is complex, and a lawyer can guide you through evaluating the notice, formulating a response, and understanding your legal options and potential defences.

What are the risks of not responding to a concerns notice within the given timeframe?

Failing to respond to a concerns notice within the 28-day period may limit your options for resolving the dispute amicably and increase the likelihood of facing defamation proceedings. It’s important to act promptly to maintain your legal rights.

Can a concerns notice lead to a court case?

A concerns notice is a preliminary step intended to resolve defamation issues without court intervention. However, if the dispute isn’t resolved through the concerns notice process, it could lead to defamation proceedings.

How does the concerns notice process benefit both parties involved in a defamation issue?

The concerns notice process aims to provide a structured way for parties to address defamation disputes amicably, potentially avoiding the need for costly and prolonged litigation. It encourages dialogue and resolution, such as through retractions, apologies, or compensation.

What is the importance of assessing the validity of a concerns notice?

Assessing the validity of a concerns notice helps determine whether the defamation claims are well-founded and whether you have a potential defence. It’s a crucial step in deciding how to respond appropriately and effectively.

How does the digital age impact defamation laws and the concerns notice process?

The digital age has increased the speed and spread of information, presenting new challenges for defamation laws and the concerns notice process. Ongoing revisions and interpretations of defamation laws are necessary to adapt to these changes and address the complexities of online communication.