30/08/2024
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30/08/2024
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A Defamation Concerns Notice is a notice which may be sent by a person or organisation which believes that defamatory material has been published about them (the "Sender"), to the individual or business that has published the defamatory material (the "Defamer").
This document may notify the Defamer that the Sender is aware of the publication of the material, that the Sender believes it is defamatory, and that the Sender is ready to take further action if the Defamer does not rectify the situation. The notice may also describe what the Defamer needs to do in order to rectify the situation.
This notice may be used as a "concerns notice" as described under defamation legislation in each state and territory of Australia. Under that legislation, a concerns notice provides a way for the Sender to raise their concerns with the Defamer, and for the Defamer to "make amends" for the defamation, which may save the parties the cost and expense of going to court. Defamation is a particularly time sensitive matter. Any time that defamatory material sits in the public sphere (such as on a website, or in a newspaper without having been retracted), it could be doing harm to the Sender's reputation. Therefore, it is important that the Sender deal with the matter swiftly, and plans their next steps in advance. This notice allows the Sender to get on the front foot in relation to the defamation. If the Sender has any further concerns about their legal situation they should strongly consider seeking legal advice.
This Defamation Concerns Notice is specifically designed for defamation matters. It provides details about the defamatory content. It is also a necessary first step before commencing court action for defamation.
A General Cease and Desist Notice is a more generic letter and can cover a wide range of situations. It is not necessarily a prerequisite to court action (although parties often choose to use it before court action anyway).
Yes, before commencing court action for defamation, it is necessary to provide the person who published the defamatory content with a Defamation Concerns Notice. That person will then have the opportunity to provide a response before court action is able to commence.
Defamation refers to the act of making false statements against someone that harms their reputation. If someone sues someone else for defamation, they often seek a public apology to restore their reputation and/or a sum of money to compensate them for the harm they have suffered.
In relation to defamation, when we talk about an "imputation", we are talking about the meaning or implication that a reasonable person would take from the defamatory statement.
Sometimes this is obvious. A person might say exactly what they mean, for example "Sandra Reynolds is a thief". At other times, a person might not say exactly what they mean, but the negative imputation about the person can be inferred. For example, they might say "Sandra Reynolds took money from a charity". From this statement, we might be able to infer that what they were really saying about Sandra Reynolds is that she is a thief, and that she has low moral standards. Therefore, we could say that the statement "Sandra Reynolds took money from a charity" contains two defamatory imputations: (1) that Sandra Reynolds is a thief, and (2) that Sandra Reynolds has low moral standards.
Under defamation legislation in each state and territory of Australia, it is necessary to provide a Defamation Concerns Notice and serve a waiting period (usually 28 days) before commencing court proceedings for defamation. Once a valid concerns notice has been sent to the Defamer, the Defamer may respond within 28 days with an "offer to make amends".
Therefore, once this notice has been completed, it may be signed and dated and sent by registered post to the Defamer (ie. the person that published the defamatory material). The Sender should keep a record of the letter, and should keep an eye out for a response from the Defamer.
If the Sender does not get a satisfactory response from the Defamer, within the required time period, then it may be necessary to seek legal advice and consider commencing legal proceedings.
It is important to note that under Australian law, most corporations are not able to sue for defamation (and therefore are not entitled to issue a concerns notice). In particular, the relevant defamation legislation in each state and territory of Australia only allows an "excluded corporation" to bring action in relation to defamation. That legislation further clarifies that a corporation is an excluded corporation if it is not a public body and –
(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators - in other words, it does not operate for profit (for example, if it is a charity); or
(b) it employs fewer than 10 persons and is not related to another corporation –
Therefore, if the corporation operates for profit, is not a public body, or has more than 10 ordinary full time employees, it is probable that it will not be considered an "excluded corporation" under this definition, and therefore will not be entitled to take action in relation to defamation.
However, if the parties involved in this matter are unsure whether or not the corporation is entitled to take action in relation to defamation, then they should strongly consider seeking legal advice.
If this Defamation Concerns Notice does not adequately particularise (or spell out) the "imputations of concern", then rather than providing an "offer to make amends", the Defamer may provide a "further particulars notice", asking for further details about the defamatory imputations.
Obviously, this can delay the resolution of this matter. Therefore, it is important that the Sender is careful when preparing this notice, to make sure that they clearly identify all of the defamatory imputations which concern them.
Before commencing court action for defamation, a person who thinks they have been defamed must provide a Concerns Notice to the Defamer. In order to qualify as a "Concerns Notice" under the relevant state and territory defamation legislation, this notice must be in writing, and must inform the Defamer of the "imputations of concern".
A Defamation Concerns Notice should include the following basic elements:
In addition, there is an option to include some details about what the relevant legislation requires the Defamer to do in response to this notice. There is also an option to include any further requests from the Sender (requests which are not addressed in the relevant legislation, but which the Sender nevertheless wants the Defamer to do).
Australia now has uniform defamation laws. This means that while different legislation has been enacted in each state and territory, the provisions of that legislation are similar between jurisdictions. The relevant legislation in each state and territory is as follows:
Given the broad distribution of many forms of media, a person or organisation that wants to commence legal action for defamation, may have several different jurisdictions to choose from. For example, if defamatory material is published in a newspaper which is distributed throughout Australia, then the defamatory material may have been published in every state and territory of Australia. As a consequence, legal action for defamation may be commenced in any of those jurisdictions. Or in the event of defamatory material being published online, the material might also have been distributed in jurisdictions outside Australia.
The creation of uniform defamation laws in Australia has helped to reduce the differences between the laws of each Australian state and territory, and therefore has helped to reduce "jurisdiction shopping" - whereby potential litigants compare the legislation between the different states and territories, and choose to commence legal action in a jurisdiction which is most favourable to their situation.
Nevertheless, in many defamation matters, the person or organisation that believes they have been defamed, may have been defamed in multiple jurisdictions. Therefore they may wish to obtain legal advice regarding (among other things) the appropriate jurisdiction in which to deal with their matter.
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Country: Australia