A letter arrives, usually from a solicitor, headed “concerns notice” and demanding that something be removed, retracted, apologised for and paid for. The instinct is often to ignore it or to fire back. Both are usually mistakes. The 2021 reforms built a structured pre litigation process around the concerns notice, and that process gives a publisher real opportunities in the first 28 days. This article is written for publishers in the broad sense: an individual who posted something, a business, an employer or a page administrator responsible for someone else’s words.
Section numbers are those of the Defamation Act 2005 (NSW), which Queensland, Victoria, South Australia and Tasmania share for the provisions discussed.
What the notice is and why it matters
Since 1 July 2021 (later in Tasmania and the Northern Territory) a person cannot commence defamation proceedings until three things have happened: a concerns notice has been given to the proposed defendant, the imputations to be sued on were particularised in it, and the “applicable period” for an offer to make amends has elapsed.1 That period is ordinarily 28 days from the day the publisher is given the notice.2 A court may grant leave to commence earlier, but only where waiting would put the claim outside the limitation period or it is otherwise just and reasonable.3
The notice is a statutory precondition to suing, and the 28 days it triggers are the window in which the publisher can make an offer to make amends. If a reasonable offer is made within that window and refused, the publisher has a complete defence to the action, whatever the merits of the imputations.4 If no offer is made, that defence is lost, and an unreasonable failure to make or accept a settlement offer can later lead to indemnity costs.5 Ignoring a concerns notice gives away the publisher’s most valuable procedural advantage.
Is it a valid concerns notice?
A document is a concerns notice only if it is in writing, specifies where the matter can be accessed (for example a web address), informs the publisher of the defamatory imputations said to be carried, and informs the publisher of the harm the complainant considers to be serious harm to reputation. A corporation entitled to sue must also set out its serious financial loss, and a copy of the matter must be provided if practicable.6 A court document cannot also serve as a concerns notice.7
Courts have treated these requirements as mandatory. In Teh v Woodworth, the New South Wales District Court struck out a claim over a publication made after 1 July 2021 because no concerns notice had identified that publication, and held in the alternative that a notice containing only a “bald reference” to serious harm, with no particulars of the harm or of causation, was invalid. The defect could not be cured by serving a fresh concerns notice after proceedings had started.8
Validity matters in two ways. First, the complainant can only sue on imputations particularised in the notice, so a vague notice narrows the eventual case. Second, if the notice fails to adequately particularise the location of the matter, the imputations, the serious harm or (for a corporation) the serious financial loss, the publisher may give a written “further particulars notice”. The complainant must respond within 14 days (or a longer agreed period), and one who does not is taken not to have given a concerns notice at all.9
The Act sets no deadline for the publisher’s further particulars notice, but its timing affects the offer period. If the particulars are provided more than 14 days after the original concerns notice, the publisher’s period for making an offer to make amends becomes 14 days from receiving them; otherwise the original 28 days continues to run. Only the first further particulars notice has this effect.10 In practice a request should be sent promptly within the 28 day period, and it should ask for genuinely missing information rather than argue the merits.
Preserve everything
The temptation on receiving a notice is to delete the post, the email thread or the message history. Removing a publication from public view is often sensible, and an offer to make amends may include taking down digital matter.11 Destroying the underlying material is different. The publisher will need the original to work out exactly what was said, to whom and when, which bears on serious harm and on every defence. The publisher’s own records of comments, edits, viewer numbers and sources may be the only evidence supporting truth, honest opinion or qualified privilege. Conduct after publication that is improper or lacking in good faith can also aggravate damages.12 The safe course is to preserve originals and metadata, record what was removed and when, and take advice before deleting anything.
Do not respond in public
A second instinct is to post about the letter, to explain or double down, or to contact the complainant’s family, employer or friends. Each of these can be a fresh publication on worse facts. A publisher who repeats the imputations after receiving a notice risks a finding of malice, which defeats qualified privilege and honest opinion, and the conduct of the dispute can increase damages. Aggravated damages sit outside the statutory cap on damages for non economic loss.13 Communications about the dispute should be made only through the publisher’s lawyer, and sent only to the complainant or their representative.
Check insurance
Some publishers hold insurance covering defamation claims without being aware of it. Whether a policy responds depends on its terms, but home and contents policies sometimes include personal legal liability cover extending to defamation, business policies may include a defamation extension, and professional indemnity and media liability policies commonly cover published material. Policies typically require prompt notification, and some give the insurer control of the defence and of any apology or settlement. Any potentially relevant insurer should be notified before any offer or apology is made.
Assess the defences early
A preliminary assessment of defences should start at once.
Serious harm. Outside Western Australia the complainant must prove that the publication has caused, or is likely to cause, serious harm to their reputation. A judge can determine the issue before trial and dismiss the proceedings if it is not established.14 A post seen by a handful of people who did not believe the allegation may fail the serious harm test; a post to a large audience alleging crime usually satisfies that test.
Truth. Justification requires the defendant to prove that the imputations were substantially true,15 which means assessing the evidence actually available, not the publisher’s belief.
Honest opinion. Opinion on a matter of public interest, based on proper material that is set out, notorious, linked or apparent from context, is defended under s 31 if honestly held.16
Privilege. Statutory qualified privilege under s 30 protects publications to recipients with an interest in the information where the publisher’s conduct was reasonable, and common law qualified privilege protects communications made under a duty or interest to someone with a reciprocal interest. Fair reports of court proceedings are protected under s 29.17
Public interest. Publications on matters of public interest, where the publisher reasonably believed publication was in the public interest, are defended under s 29A.18
A publisher confident of a defence may make no offer and contest the claim. A publisher who is not confident of a defence should treat the offer to make amends as the main event.
The offer to make amends
An offer to make amends must be in writing, be readily identifiable as an offer under Division 1 of Part 3 of the Act, and remain open for at least 28 days. It must include an offer to publish a reasonable correction, clarification or additional information, an offer to tell anyone to whom the matter was passed that it is or may be defamatory, and an offer to pay the complainant’s reasonable expenses incurred before the offer and in considering it. It may be limited to particular imputations, in which case it must say so.19 It may also include an apology, steps to remove digital matter, compensation for economic or non economic loss (a stated sum, a sum to be agreed, or a sum fixed by an arbitrator or a court), and particulars of anything already done.20 The offer is without prejudice unless it says otherwise, and statements made in connection with it are inadmissible except on questions about the Division itself or costs.21
The offer cannot be made after the applicable period has expired or after a defence has been served.22 It may be withdrawn in writing before acceptance, and a renewed offer can be made, including after the period has expired if it genuinely addresses the complainant’s objections and is made within 14 days of the withdrawal.23
If the offer is accepted and carried out, the complainant cannot pursue the claim, and a court may order the publisher to pay the reasonable expenses of accepting it.24 If it is refused, the s 18 defence is available provided the offer was made as soon as reasonably practicable after the concerns notice (and within the applicable period), the publisher was ready and willing to carry it out, and in all the circumstances the offer was reasonable.25
Reasonableness is judged objectively as at the time the offer was made, and this is the point at which offers most often fail. In Zoef v Nationwide News Pty Ltd, a newspaper article about an 81 year old tailor’s son was understood to identify the father as a gunrunner, and the publisher offered an apology in its “For the Record” column, in that column’s usual small format, together with $20,000. The New South Wales Court of Appeal held that the offer was not reasonable: the proposed apology was “footnote size” compared with a full page article, and the money was modest for imputations of that seriousness. The s 18 defence failed and judgment was entered for $150,000.26 The case was decided under the earlier form of s 18, which timed the offer from the publisher’s awareness of the complaint rather than from a concerns notice, but the reasonableness analysis is unchanged. A correction with prominence proportionate to the original, a genuine apology where appropriate and a realistic sum are what make the defence work. A token offer gives no protection under s 18 and little under s 40, which turns on whether the offer was reasonable when made.
Apologies without admission
Publishers often resist apologising because they fear it concedes the case. An apology made by or on behalf of a person in connection with allegedly defamatory matter is not an express or implied admission of fault or liability, is not relevant to determining liability, and is not admissible in civil proceedings as evidence of fault.27 An apology or correction is also admissible in mitigation of damages.28 The questions are therefore about wording and prominence rather than whether to apologise at all. A grudging, buried or qualified apology may do little to mitigate damages and may fail to make an offer reasonable. Drafting the apology as part of the offer keeps it without prejudice until accepted.
Publishers of other people’s words
Employers, page administrators and anyone who shared material receive concerns notices too. A person who intentionally participates in communicating matter is a publisher even if they did not write it, as the High Court held in Voller.29 The defence of innocent dissemination under s 32 protects a subordinate distributor who neither knew nor ought reasonably to have known the matter was defamatory and had no capacity to exercise editorial control before publication; in Bolton v Stoltenberg a page operator who promptly removed a third party’s defamatory comment after a complaint successfully relied on this defence for that comment.30 Once a concerns notice is received the publisher is on notice, so leaving material up is difficult to defend on this basis. Employers may also be vicariously liable for employees’ publications in the course of employment and should consider whether the employee has interests that may conflict with the employer’s in responding to the notice.
If proceedings are commenced
If proceedings are served, the timetable becomes a court one. In New South Wales a defence must be filed within 28 days after service of the statement of claim unless the court directs otherwise.31 In Queensland a notice of intention to defend, with the defence attached, must be filed within 28 days after the claim is served.32 Missing them risks default judgment. Serving a defence also ends the ability to make an offer to make amends.33 The complainant’s limitation period is one year from publication, extendable to three years, and a concerns notice given within the last 56 days of the year extends it so the 28 day process can run.34
Practical points
- Diarise the date the notice was received and count 28 days. If a further particulars notice is sent, diarise the complainant’s 14 day response period as well.
- Preserve the original material, metadata, comments, audience figures and sources, and record what is removed and when.
- Notify any insurer that may respond before making any offer or apology.
- Say nothing publicly about the dispute.
- Assess serious harm and the defences candidly against the available evidence.
- If a defence is doubtful, prepare an offer to make amends that is proportionate in prominence, wording and money.
Differences between jurisdictions
The provisions described above apply in New South Wales, Queensland, Victoria, South Australia and Tasmania with the same section numbers. The Australian Capital Territory and Northern Territory have equivalent provisions numbered differently. In Western Australia a concerns notice is not a precondition to proceedings, the serious harm element does not apply, and the offer to make amends provisions remain in their pre 2021 form. Court rules on the time for a defence also differ.
Getting advice
The first 28 days after a concerns notice set the course of a defamation dispute. They determine whether a complete defence under s 18 will be available, how costs are likely to fall and whether the matter can be resolved for the price of a correction rather than a trial. Advice obtained early allows a publisher to use that period rather than merely survive it.
About this article
This article is general information about Australian law as at the review date shown above. It is not legal advice and does not take account of any particular situation. Defamation law differs between states and territories and changes over time. Anyone considering making or defending a claim should obtain advice on their own circumstances before acting.