Concerns Notices

A ‘concerns notice’ is a document, usually in the form of a letter, which has significance under the defamation legislation of each of the Australian States and Territories.

A concerns notice is sent by an ‘aggrieved person’ who says they have been defamed and is directed to the publisher.

In most of Australia, it is compulsory to send a concerns notice and wait a period of time before you can commence defamation litigation. This principle is in section 12B of the Defamation Act 2005 (NSW) and equivalent provisions in other jurisdictions’ legislation. But the law is different in WA and the NT.

Section 12A(1) of the Defamation Act 2005 (NSW) and equivalent provisions prescribes the following elements of a concerns notice:

• the notice must be in writing: s 12A(1)(a)(i);
• the notice must specify the location where the matter in question can be accessed (for example, a webpage address): s 12A(1)(a)(ii);
• the notice must inform 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 (the ‘imputations of concern’): s 12A(1)(a)(iii);
• the notice must inform 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: s 12A(1)(a)(iv);
• for an aggrieved person that is an excluded corporation, the notice must inform 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: s 12A(1)(a)(v);
• the notice must, if practicable, provide a copy of the matter in question together with the notice: s 12A(1)(b).

In WA and the NT, the elements are different.

If you’ve been defamed…

Sending a concerns notice is not something anyone should do lightly. Before you do anything: take a breath and consider whether the situation is something you can put behind you without taking any action.

If you do want to send a concerns notice, then the legislation does not require that you have a lawyer do it for you. But if you do it yourself, you should be very careful:

• Make sure the ‘imputations’ are drafted carefully. ‘Imputations’ roughy means the damaging ‘meanings’ about you that are communicated by the publication.
• Similarly, be careful in how you describe the serious harm to reputation you have suffered. Stating that you have suffered serious harm is not enough. Go deeper: who has seen the publication? How has it impacted your life?
• Be moderate. Tone it down, even if you are angry.
• Most importantly: be honest!

Producing a decent concerns notice is hard. We strongly recommend you seek legal advice. If you need, we can help.

If you’ve received a concerns notice…

You need to act quickly.

There is more than one way to respond to a concerns notice. But broadly speaking, you could (1) make peace, (2) do nothing, or (3) fight back. The right approach really depends on your circumstances; you should seek legal advice from a lawyer.

(1) Making peace:

• Is nearly always a good idea. But like everything, it depends.
• The way to do it is with a letter in reply, called an ‘offer to make amends’. The letter does what the label says.
• An ‘offer to make amends’ is a kind of settlement offer which has significance under section 17 of the Defamation Act 2005 (NSW) and equivalents in other Australian jurisdictions.
• Like concerns notices, an ‘offer to make amends’ has prescribed elements, which are set out in section 15(1) of the Defamation Act 2005 (NSW).
• You may also make a settlement offer without it being a formal ‘offer to make amends’. But if you want to avail yourself of the legislative protections afforded to offers to make amends, then you should pay careful attention to the statute.
• Be careful in sending one of these letters. In some circumstances, it could be used against you in Court. Consider marking the letter as ‘without prejudice save as to costs’.
• If you can afford it, you should really seek the assistance of a lawyer in making an offer to make amends.

(2) Doing nothing:

• Is nearly always a stupid idea. But like everything, it depends.
• Ignoring your problems won’t make them go away. Failure to respond to a concerns notice could wind you up in Court if the sender decides to sue.

(3) Fighting back:

• Taking a combative attitude is often a bad idea. But once again: it depends.
• Just because the aggrieved person demands something from you does not mean you must do it. In some circumstances, there may be strategic value in rejecting an invitation made in a concerns notice which invited you to make an offer to make amends.
• Actively responding to a concerns notice in such a way may provoke the sender to sue you. You should not take this approach lightly: it could turn out expensive.
• Going down this path is tough. You should seek assistance from a lawyer who knows what they are doing.

EITHER WAY, GET A WRIGGLE ON: If you decide to make peace by making an ‘offer to make amends’, then you should move fast: your offer will lose legal significance after a couple of weeks, depending on the facts. See section 14 of the Defamation Act 2005 (NSW) and equivalents in other States and Territories.