The prospect of sending or receiving a concerns notice can be a daunting experience, particularly for those unfamiliar with the legal process. It is essential to deal with a concerns notice swiftly and appropriately, as any missteps or delays can have serious legal consequences for all parties involved.
Definition and purpose
A concerns notice is a formal document (usually in the form of a letter) issued under Section 12A of the Defamation Act 2005. It is sent by an aggrieved person or business to another person or business who has allegedly published (or re-published) defamatory material about them. This notice serves as the first step in formally addressing a defamation claim and provides a pathway for resolving disputes without resorting to litigation.
The Defamation Act applies uniformly across several Australian states and territories, including New South Wales, Victoria, Queensland, South Australia, and Tasmania, which means the legal framework is consistent across these jurisdictions.
Before launching defamation proceedings in Court, an aggrieved person must send a concerns notice to the alleged defamer, as stipulated by the Defamation Act. After sending the concerns notice, an aggrieved person must wait at-least 28-days before going to Court. This process allows the alleged defamer to respond and potentially resolve the issue amicably without the parties resorting to litigation.
Requirements for a valid Concerns Notice
For a concerns notice to be valid, it must meet the following criteria:
- It is in writing.
- It specifies the location where the defamatory material can be accessed, or includes a copy of the material.
- It states the defamatory imputations (i.e the allegations) that the aggrieved person believes are carried by the publication.
- It sets out the serious reputational harm caused to the aggrieved person’s reputation caused by the defamatory material.
- If the aggrieved party is a business, the notice must also specify the serious financial harm caused by the material.
Responding to a Concerns Notice
If you receive a concerns notice you should respond promptly and professionally. You have 28 days to consider the notice and decide whether to make an ‘offer to make amends’, before the aggrieved party can commence legal proceedings against you. Your offer could include retracting the defamatory statement, publishing an apology, or offering compensation. The 28-day period may be extended if you request further particulars.