The first steps
Most of the damage defendants do to their own position happens in the first few days, before they have taken advice. These are the things to do, and not do, straight away.
- Note the date you received the notice or claim. The 28 day period runs from when the concerns notice was given to you, and court deadlines run from service.
- Preserve everything. Keep the original post, review or message, your drafts, the material you relied on, and any messages with the complainant. Deleting a publication can be sensible, but delete only after a copy has been kept.
- Do not reply publicly, do not post about the complaint, and do not share the notice or the claim with others. Each of those can be a fresh publication and can aggravate damages.
- Do not contact the complainant directly, and do not apologise in your own words before advice. An apology is not an admission of liability under the legislation, but what is said around it can be.
- Check your insurance. Some home and contents, business and professional indemnity policies respond to defamation claims, and most require prompt notification.
- If you published on behalf of an employer, a committee or a business, tell them. They may be the publisher too.
Reading the concerns notice
In every state and territory other than Western Australia, a person who wants to sue for defamation must first give the publisher a concerns notice and wait for the applicable period to pass. The notice has to meet statutory requirements. It must be in writing, specify where the publication can be accessed, set out the defamatory imputations the complainant says it carries, and describe the harm the complainant considers to be serious harm. Only imputations particularised in the notice can later be sued on.
That makes the notice worth reading closely. If it does not adequately particularise the imputations, the publisher can give a further particulars notice within the 28 day period, which the complainant must answer within 14 days. A notice that does not meet the requirements is not a concerns notice at all, and proceedings commenced on it are liable to be dismissed. Equally, a notice that is valid starts a clock that does not stop while you decide what to do.
The notice will usually demand removal, an apology, costs and sometimes damages. The demands are the complainant's opening position, not a measure of what the claim is worth. Many concerns notices overstate the imputations, the reach of the publication and the harm, and a measured response that engages with those points changes the dynamic quickly.
Defamation Act 2005 ss 12A, 12B (NSW, Qld, Vic, SA, Tas); Defamation Act 2006 (NT) ss 11A, 11B; Civil Law (Wrongs) Act 2002 (ACT) ss 124A, 124BThe offer to make amends
The offer to make amends is the most important tool a defendant has. It must be made within 28 days of the concerns notice, or within 14 days of providing further particulars if that is later, and it cannot be made after a defence has been filed. To comply with the legislation the offer must be in writing, state that it is an offer to make amends, and include an offer to publish a reasonable correction and to pay the complainant's reasonable expenses. It may also include an apology, removal of the material, payment of compensation and other terms.
If the offer is accepted, the complainant cannot sue and the matter ends on the agreed terms. If it is not accepted, and the court later finds that the offer was made as soon as practicable and was reasonable in the circumstances, the offer is a complete defence to the claim, provided the publisher was ready and willing to carry it out. Even where the defence does not succeed, an unreasonably refused offer is relevant to costs.
An offer can be limited to some imputations only, and can be made without admitting liability. The judgment calls are what to offer, how the correction is worded and where it is published, and whether to offer money. Those choices depend on how strong the defences are, which is why the offer and the defences are assessed together.
The 28 days can pass quickly, particularly where a further particulars notice is used. Offers made late lose the statutory protection, although they can still be made as ordinary settlement offers. If you have received a concerns notice, the enquiry should be made in the first week, not the last.
The defences
The defences are set out in the uniform legislation and supplemented by the common law. Several usually apply to the same publication, and they are pleaded in the alternative. Section numbers below are those of the Defamation Act 2005 as enacted in New South Wales, Queensland, Victoria, South Australia and Tasmania. The ACT and Northern Territory provisions are numbered differently.
Justification
The imputations are substantially true. A complete defence however damaging the publication. The publisher carries the burden of proof, which is why the material relied on at the time of publication matters.
s 25Contextual truth
Other imputations carried by the publication are substantially true, and because of them the untrue imputations did no further harm to the complainant's reputation.
s 26Absolute privilege
Statements made in parliament, in court or tribunal proceedings and in certain other protected settings. Since the Stage 2 reforms this includes complaints and reports made to police officers acting in an official capacity, in every jurisdiction other than Western Australia. Complete and cannot be defeated by malice.
s 27Public documents and fair reports
Fair summaries or copies of public documents, and fair reports of proceedings of public concern such as court hearings, parliamentary debates and public meetings.
ss 28, 29Public interest
The matter concerned an issue of public interest and the publisher reasonably believed publication was in the public interest. Introduced in 2021 and now considered by the courts in several decisions. Relevant to journalists, but not limited to them.
s 29AQualified privilege
The recipient had an interest in receiving the information and the publisher's conduct was reasonable. Complaints to employers, regulators and professional bodies, references and internal reports often fall here. Defeated by malice. The common law defence of qualified privilege also applies where there is a reciprocal duty and interest, which is the basis on which complaints to the police were traditionally protected. For publications since the Stage 2 reforms commenced, a complaint to police is absolutely privileged in every jurisdiction other than Western Australia.
s 30 and common lawScientific or academic peer review
Assessments and statements published in peer reviewed scientific or academic journals and related material.
s 30AHonest opinion
The matter was an expression of opinion rather than a statement of fact, related to a matter of public interest, and was based on proper material. The defence for reviews, commentary and criticism. Lost if the opinion was not honestly held.
s 31Innocent dissemination
The publisher was a subordinate distributor, such as a bookseller, newsagent or in some circumstances an online intermediary, who neither knew nor ought to have known the matter was defamatory. Separate provisions for digital intermediaries now apply in most jurisdictions.
s 32Triviality
The circumstances of publication were such that the complainant was unlikely to sustain any harm. Repealed in the jurisdictions that adopted the 2021 reforms, where the serious harm element replaced it. Still available in Western Australia.
s 33 (WA)Before any defence is reached, a defendant can also require the complainant to prove the following:
- Did the publication actually identify the complainant?
- Does it really carry the imputations pleaded, or has the complainant read into it meanings that an ordinary reasonable reader would not?
- Has it caused serious harm, given who saw it and what happened next?
In the jurisdictions that adopted the 2021 reforms the serious harm element is decided by a judge and can be determined early, and a successful application on that issue ends the proceedings.
Who counts as a publisher
Anyone who intentionally participates in communicating the material to a third party is a publisher. That includes the author, a person who shares or forwards it, a person who publishes a screenshot of it, and in some circumstances the administrator of a page or group on which others post. An employer or business can be liable for what an employee publishes in the course of their work. Each publisher can be sued separately, and a complainant will often target the person most able to pay or most likely to settle.
Most jurisdictions have now also adopted provisions dealing with digital intermediaries such as search engines, forum hosts and social media platforms, including a defence for intermediaries that have an accessible complaints mechanism and act on complaints within a set period. If you host content published by others, those provisions shape both your exposure and the steps you should take on receiving a complaint.
Exposure and costs
Defendants naturally want to know the worst case. The honest answer is that it depends on reach, gravity and conduct. Damages for non economic loss are capped, and from 1 July 2026 the cap is $520,000, but the cap is reserved for the most serious cases and the great majority of awards are a fraction of it. Aggravated damages can be awarded in addition where the publisher's conduct has made the harm worse, which is one reason not to respond publicly or repeat the allegation. Economic loss, if proved, is not capped. Exemplary or punitive damages are not available.
In practice, legal costs are often the larger exposure. Defamation litigation is expensive for both sides, and the costs rules are designed to punish unreasonable refusals to settle. Where a defendant unreasonably fails to accept a reasonable settlement offer from the plaintiff, the court must ordinarily order indemnity costs against the defendant. The same applies in reverse where a plaintiff unreasonably refuses a defendant's offer. Making and responding to offers well is therefore not a side issue. It is the main way exposure is controlled.
Our approach for defendants is to give an early and candid view on the defences and on the likely range of outcomes, to use the offer to make amends where it is available, and to keep the matter proportionate. Some claims should be resisted firmly because the defences are strong and the complainant's position is weak. Others should be resolved quickly because the publication is indefensible and every week makes it more expensive. Telling the difference early is most of the job.
Defamation Act 2005 ss 34, 35, 37, 40Counterclaims
It is common for the complainant to have published something about the defendant as well, often in the same exchange. A defendant who has been defamed can bring their own claim, and where both sides have genuine claims the practical effect is often a negotiated withdrawal on both sides. A counterclaim is subject to the same requirements as any other claim, including the concerns notice and the limitation period, so it needs to be considered early rather than raised as an afterthought.
What to send us
To give a useful view at the first consultation we would like to see, where you have them:
- the concerns notice, letter or court documents, with the envelope or email showing when they arrived;
- the publication complained of, in full, including the surrounding thread or page if it was online;
- the material you relied on when you published it, and anything that shows it was true, was your honest opinion or was sent to someone with a reason to receive it;
- any contact with the complainant before or since;
- details of any insurance policy that might respond;
- anything the complainant has published about you.
If a deadline is close, say so in the enquiry form. The 28 day period for an offer to make amends and the time for filing a defence are both short, and we will tell you promptly whether we can act within them.
Further reading
The articles below go into more depth on the topics covered on this page.