I have received a concerns notice – what do I do? – Libel & Defamation

Article Summary

This article serves as a comprehensive guide for individuals or
entities who have received a concerns notice under Australian
defamation law, particularly emphasising the legal framework in
Queensland but applicable across various states due to the uniform
adoption of the Defamation Acts 2005.

It outlines the essential steps and considerations for
effectively responding to such notices, aiming to mitigate
potential legal repercussions and resolve disputes amicably.

Concerns Notice Explained – A concerns
notice is a formal document sent to the publisher of allegedly
defamatory material, marking the initial step towards resolving
defamation disputes outside court. It specifies the defamatory
statements, explains their harmful implications, and offers the
publisher a chance to make amends, potentially averting
litigation.

Response Strategies – Recipients of a
concerns notice have several response options, including validating
the notice’s legitimacy, requesting further information,
offering to make amends, retracting the defamatory statements,
negotiating a settlement, or preparing a legal defense. The chosen
strategy should be informed by a thorough assessment of the
allegations and potential defenses, with a strong emphasis on
seeking legal advice to navigate the complexities of defamation law
effectively.

Legal Considerations and Timelines – The
law provides a 28-day window for responding to a concerns notice,
emphasizing the importance of timely and considered actions.
Failure to respond appropriately can limit defense options and
escalate the dispute to court proceedings.

Practical Advice – The guide underscores
the importance of legal consultation, highlighting that defamation
law’s intricacies necessitate professional guidance. It also
stresses the benefits of amicable dispute resolution, which can
prevent the financial and reputational costs associated with court
battles.

Navigating the response to a concerns notice under Australian
defamation law requires a careful evaluation of the allegations, a
strategic approach to formulating a response, and, crucially,
professional legal advice.

By understanding the legal framework and available response
strategies, individuals and entities can effectively manage
defamation disputes, aiming for resolutions that protect their
reputation while minimising legal risks.

Our defamation lawyers explain in a lot more detail
below.

I’ve Received a Concerns Notice – How to Respond

Are you someone who has recently received a concerns notice from
another party and is struggling to understand the process of
forming and sending a response?

If so, you may feel very stressed about this situation, as a
concerns notice is a serious legal document that can have equally
serious consequences if you do not address it effectively. It can
be very difficult to form an appropriate response to a concerns
notice, especially if this is the first time you have dealt with
one before.

When you are accused of defamation, there are several ways that
you can react and respond, which will generally depend on the
details of the particular situation you’re in. It is important
to remain calm and to think out your response before sending it, as
an emotional response will generally not be the best option for
your matter.

But how can I form an appropriate and effective response to a
concerns notice depending on the circumstances of my matter?

In this article our Queensland defamation lawyers will provide you
with a basic guide to what a concerns notice is, what it entails,
and the several ways that you may choose to respond to one.

This article is part II to our previous article – Sending a Concerns Notice – Complete
Guide

Understanding the Defamation Acts in Australia

The core of Australia’s defamation laws is encapsulated in
the various Defamation Acts 2005, which were adopted with
variations across different states and territories to ensure a
degree of uniformity.

These laws provide a framework for addressing harm caused by
defamatory statements, which are defined as statements that could
damage a person’s reputation in the eyes of reasonable members
of the community.

The Acts outline what constitutes a defamatory statement,
defences available to defendants (such as truth, public interest,
and fair comment), and the process for making and responding to
allegations of defamation, including the offer to make amends
mechanism.

The legislation aims to make the defamation law process more
accessible and less costly, encouraging parties to resolve disputes
without resorting to prolonged litigation.

However, the dynamic nature of communication in the digital age
continually tests these laws, necessitating ongoing revisions and
interpretations to adapt to new challenges.

1. Queensland – Defamation Act 2005 (Qld).




2. New South Wales – Defamation Act 2005 (NSW).




3. Victoria – Defamation Act 2005 (Vic).




4. Western Australia – Defamation Act 2005 (WA).




5. South Australia – Defamation Act 2005 (SA).




6. Northern Territory – Defamation Act 2005 (NT).




7. Tasmania – Defamation Act 2005 (Tas).

What is a Concerns Notice?

The first question that you may have in relation to responding
to a concerns notice is what it is and what it does?

A concerns notice is a formal written notice sent to the
publisher of allegedly defamatory material in Australia pursuant to
section 12A of the Defamation Act, serving as
the first step in the process of resolving defamation.

It provides the publisher with the opportunity to respond and
make amends and is a pre-requisite before any potential legal
action is taken for defamation.

The notice identifies the specific defamatory statements,
explains why they are considered defamatory, and outlines the harm
caused to the aggrieved person’s reputation.

It gives the publisher the chance to respond with an
“offer to make amends“, which can include
retracting the statements, issuing an apology, or offering
compensation. If the recipient of the concerns notice makes a
reasonable offer that is rejected, it can provide them with a
defence against any subsequent defamation proceedings in Court, as
the court will consider whether the offer should have been
accepted.

Alternatively, if the party receiving the concerns notice
believes it is unjust or unreasonable, it provides them with an
opportunity to form a defence and seek legal advice before any
ensuing legal action that may come their way.

The concerns notice process aims to resolve defamation disputes
quickly and avoid costly litigation, by providing an opportunity
for the recipient to handle the matter.

A concerns notice is an important legal document in Australian
defamation law that allows both of the involved parties to manage
the resolution process and potentially avoid any potential legal
action if possible and reasonable to both parties!

We have a very detailed article here – Sending a Concerns Notice – Complete
Guide

What is Defamation?

Now that we have discussed what a concerns notice is when
dealing with defamation, you may be wondering what defamation is if
you have not interacted with it before.

The term ‘defamation’ refers to the legal concept of
harming a person’s reputation through the publication of false
statements.

The key elements are the publication of the defamatory material
to at least one other person, identification of the allegedly
defamed party as the subject, a defamatory meaning that lowers the
party’s reputation in the eyes of ordinary, reasonable members
of the community, and proof that the statements have caused or are
likely to cause serious harm to the other parties reputation.

When considering defamation in Australian law, the
Defamation Act 2005 is the key piece of legislation to
look to, which was formed to retain much of the common law
principles around defamation while introducing new provisions for
enhanced protection for victims and defendants alike, such as the
serious harm requirement.

There are several defences that are established under law that
may provide defending parties with a way to prove that they did not
defame the other party, with defendants able to raise various
defences such as truth, honest opinion, or qualified privilege.

The amount of damages awarded is generally decided by the courts
in defamation proceedings, which consider both legislated limits on
damages and the parties’ conduct when awarding costs.

Check out our article here – Defamation in Queensland

How Long Do You Have to Respond to a Concerns Notice?

You may be wondering how long you have to respond to a concerns
notice when you receive it? This is an important consideration, as
there is a limit that you must meet.

The recipient of a concerns notice in Australia typically has 28
days to respond.

Section 14 of the Defamation Act 2005
(Qld) (“the Defamation Act“) says:

This response period serves an important purpose, as it allows
the recipient to carefully consider the allegations of defamation
outlined in the concerns notice.

This involves reviewing the specific statements identified as
defamatory, assessing the content in question, and deciding the
route of response that they will pick.

How Can I Respond to a Concerns Notice?

Now that you are aware of what a concerns notice is and what it
means, you may be wondering what the best ways to respond are.

If you have received a concerns notice, there are a range of
ways that you may choose to respond to a concerns notice, which
will vary depending on the matter itself and the extent of
reasonableness that you consider the notice to be. These can
include:

1. Determine if the concerns notice is valid.




2. Request more information.




3. Offer to make amends.




4. Make a retraction.




5. Negotiate a settlement.




6. Get legal advice.




7. Form a defence.

We will explain these in more detail below.

Is the Concerns Notice Valid?

Before you take any action after you have received a concerns
notice, it is vital to assess what your stance on the matter is and
how that will affect your response. When responding to a concerns
notice, you may effectively consider your stance on the matter by
following several key steps.

Firstly, thoroughly assess the specific allegations of
defamation outlined in the notice, understanding the exact
statements deemed defamatory and the reason behind this accusation.
If the publication is not defamation, then they should never have
issued a concerns notice in the first place.

Next, you should evaluate the evidence supporting the
allegations so you can decide whether the statements are facts or
opinions and have caused significant harm to the other party’s
reputation.

With this information, you can effectively decide whether you
agree with the allegations, are open to offering an apology or
correction, or believe you have a valid defence against the
defamation claim.

You should consider seeking legal advice through this process,
as a lawyer can help you to understand your best possible outcome
and how you can go about achieving it.

Now that you understand the stance you are taking, you may
choose to provide one of the following responses.

The requirements for bringing an action for defamation in
Australia (and issuing a concerns notice) are:

1. The defamatory imputations must cause serious harm.




2. The publications must have named the person (or strong
   inference).




3. There must have been a publication about the person which
   included defamatory imputations.




4. The person must be an actual person or an excluded
   corporation.




5. The person must have sent a valid compliant concerns
   notice.

If the person can tick all of the above, then they can bring a
defamation claim against you.

Request More Information (Further Particulars Notice)

The first way that you can respond if you have received a
concerns notice is by requesting more information from the other
party.

Section 12A(3) to (5) of the Defamation
Act state:

You may choose to politely request additional details about the
concerns that have been raised if you feel that you were not
provided with enough. This might include asking for specifics on
the nature of the complaint, the timeline of events, or any
supporting documentation.

By gathering more information, you’ll be better equipped to
address the concerns effectively and generally understand the
matter at hand. It’s also a good idea to express your
willingness to work collaboratively to resolve the issue and clear
up the matter together.

You should try to avoid coming across as defensive or
confrontational, as this can escalate the situation and create a
hostile environment that lacks communication. Instead, try to focus
on establishing open communication and a constructive dialogue.

With the right approach, you can use this as an opportunity to
better understand the problem and work towards a mutually
beneficial solution.

Offer to Make Amends

Another way that you may decide to respond after you have
received a concerns notice is with an offer to make amends.

Section 13 of the Defamation Act
states:

If this is the approach you choose, you must be aware that you
are taking to blame for the defamation and acknowledging your fault
in the matter.

Begin by acknowledging the concerns that have been raised and
expressing your honest regret for any inconvenience or harm caused.
You should then outline specific steps you are willing to take to
resolve the situation. This might include offering some form of
compensation.

Additionally, you can propose changes to your actions to prevent
similar issues from occurring in the future.

After you have received a concerns notice, it’s crucial to
avoid making excuses or shifting blame and instead focus on taking
responsibility and demonstrating your commitment to resolving the
matter.

By offering a genuine and constructive solution, you can show
your willingness to make things right and preserve the
relationship!

The content of offer to make amends can be anything, however section 15 of the Defamation Act has
some requirements and suggestions.

Withdrawal of Offer to Make Amends

Section 16(1) of the Defamation Act
states:

Withdrawing an offer to make amends in defamation proceedings
can have several risks and implications, both legal and strategic.
The offer to make amends is a mechanism available in all
jurisdictions as part of defamation law, allowing the defendant to
offer an apology, correction, and sometimes compensation to the
claimant as a way to mitigate or avoid further legal action.

Below are some of the risks associated with withdrawing such an
offer:

1. Impact on Damages – If the case
   proceeds to trial, the fact that an offer to make amends was made
   and then withdrawn might influence the amount of damages awarded.
   Courts may consider the defendant’s conduct throughout the
   proceedings, including their attempts (or lack thereof) to mitigate
   harm.




2. Increased Costs – Continuing with
   litigation after withdrawing an offer to make amends can
   significantly increase legal costs for both parties. This includes
   solicitors’ fees, court costs, and potentially the costs of a
   trial.




3. Loss of a Potential Resolution –
   Withdrawing an offer to make amends may eliminate a potential path
   to resolving the dispute without further litigation. This could
   lead to a continuation of legal proceedings, which might have been
   avoidable.




4. Reputational Damage – The act of
   making an offer to make amends can sometimes be seen as a goodwill
   gesture, aiming to rectify the harm caused by the defamation.
   Withdrawing the offer might harm the defendant’s reputation
   further, especially if the withdrawal is perceived as an
   unwillingness to acknowledge the harm caused.




5. Strategic Disadvantages –
   Withdrawing an offer may also have strategic implications for the
   defence. It could signal to the claimant and the court that the
   defendant is less confident in their position or unwilling to
   engage in alternative dispute resolution methods.

It’s important for defendants considering withdrawing an
offer to make amends to carefully weigh these risks and consult
with legal advice from qualified solicitors.

The decision should be based on a strategic assessment of the
legal and reputational implications, as well as the likelihood of
achieving a more favourable outcome through continued
litigation.

Failure to Accept a Reasonable Offer

The effect of failure to accept reasonable offer to make amends
in outlined at section 18 of the Defamation Act,
which says:

In plain English, if a publisher quickly tries to fix a
situation where they might have defamed someone by making a fair
offer to apologise and/or compensate the harmed person, and they
are truly ready to follow through with that offer, they can argue
in court proceedings that they shouldn’t be held liable for
defamation if the person who felt wronged didn’t accept their
offer to make things right.

Accepting a Reasonable Offer and Ending Defamatory Action

The effect of acceptance of an offer to make amends in outlined
at section 17 of the Defamation Act,
which says:

If someone who published potentially defamatory information
agrees to apologise and possibly pays compensation (as they offered
to do), the person who was harmed by the information cannot take
them to court for defamation proceedings regarding that specific
issue anymore.

However, a court may decide that the person who made the apology
and/or compensation must also cover any reasonable legal or other
expenses the aggrieved person had because of the defamation
issue.

The court that can make these orders depends on whether the
aggrieved person has already started legal action for defamation.
If they have, the court where the action was started can make the
order. If not, the Supreme Court can make the order.

Make a Retraction of the Publication

Another way that you may decide to respond if you have received
a concerns notice is by making a retraction.

Start by acknowledging the specific statement or claim that you
wish to retract, and clearly state that you are retracting it.
Provide a brief explanation for the retraction, such as any new
information that may have come to light or a mistake in the
original statement.

You should avoid making excuses and instead focus on taking
responsibility for the error and any harm it has caused. It’s
also a good idea to express your regret for any inconvenience or
harm caused by the original statement.

Finally, show your commitment to ensuring issues of this nature
are an issue of the past. By handling the retraction in a
straightforward and transparent manner, you can demonstrate your
integrity and rebuild trust with the other party.

If Defamation, Try to Negotiate a Settlement

Many defamation claims are settled in private, without the need
for court intervention. These settlements often occur in a private
conference, possibly with legal representatives, and can be
conducted face-to-face or over the phone. This method is especially
common for disputes that haven’t been widely publicised.

Mediation is typically used for more complex cases and involves
an experienced mediator (often a senior barrister). It can be
costlier than other methods but is less expensive and quicker than
a court trial.

Mediation involves both parties and their lawyers attempting to
negotiate a settlement, guided by the mediator’s advice, which
may lead to surprising and agreeable outcomes.

If you have received a concerns notice, alternative dispute
resolution methods are important for resolving defamation claims
outside of court, focusing on amicable settlements that can save
time, reduce costs, and potentially lead to more satisfactory
outcomes for all parties involved.

Form a Defence to Defamation Claims

Another way that you may decide to respond to a concerns notice
is by forming a defence against the accusations. Some possible
defences include:

The Defamation Act 2005 (Qld) contains a number of
defences to defamation. These defences include (inter alia):

1. The Defence of absolute privilege.




2. The Defence of contextual truth.




3. The Defence of justification.




4. The Defence of qualified privilege.

If you wish to reject the accusations of defamation and provide
a defence, you should begin by carefully reviewing the details of
the concerns that have been raised and gathering any relevant
evidence or documentation that supports your position.

In your response, clearly and concisely address each of the
concerns, providing a logical and well-reasoned explanation for
your actions or decisions. Avoid being defensive or
confrontational, and instead focus on presenting a factual and
objective case that you could use in the court if needs be.

If appropriate, if you have received a concerns notice you can
also offer to provide additional information or to engage in
further communication to resolve the issue. By taking a
constructive and collaborative approach, you can demonstrate your
commitment to addressing the concerns and forming an effective
defence against the accusations of defamation.

We have a very detailed article here – Defending a Defamation Claim in Queensland

Get Legal Advice from Defamation Lawyers

If you have received a concerns notice saying you have published
defamatory information, you should definitely consider hiring a
lawyer to assist with your response.

Defamation law is complex, and a lawyer can provide great
guidance on evaluating the structure of the claim, drafting an
appropriate response, and negotiating a resolution.

They can ensure you meet all legal requirements, such as
providing a timely and compliant offer to make amends if
appropriate. Without that added legal expertise, you may make wrong
moves that result in an outcome that does not suit you best!

Hire a lawyer to assist you when forming a response to a
concerns notice; it can make a big difference!

Things to Consider After Receiving a Concerns Notice

Upon receiving a concerns notice, several factors need to be
evaluated, such as:

1. Compliance with the formal requirements of the notice.




2. The necessity for more detailed explanations of the defamatory
   implication.




3. Whether the party raising the concern is an excluded
   corporation.




4. The expiration status of the time limit to initiate defamation
   action in Court.




5. The presence of the necessary components for a defamation
   claim.




6. The applicability of any legal defamation defences.




7. The appropriateness of proposing a remedy under the relevant
   legislation.




8. If applicable, the deadline for submitting such an offer,
   specifically, when the 28-day period concludes.

Thinking about these things can give you a good assessment of
where you are legally and will assist you in making the decision on
how to proceed.

Steps to take if Accused of Defamation

When faced with a defamation accusation through a concerns
notice, there are several strategic steps you can take to address
the situation effectively. Here’s a breakdown of the actions
you can consider based on the information provided in this
article:

1. Assess the Validity of the Concerns Notice
   – Begin by thoroughly reviewing the allegations of defamation
   within the notice. Understand the specific statements considered
   defamatory and the reasons behind these accusations. Determine
   whether the statements are factual or opinions and if they’ve
   caused significant harm to the claimant’s reputation. Decide on
   your stance: whether you agree with the allegations, are willing to
   apologise or correct, or believe you have a valid defence against
   the defamation claim.




2. Seek Legal Advice – Consult with a
   defamation lawyer to understand your rights, potential defences,
   and the best course of action. A lawyer can help navigate the
   complexities of defamation law and advise on the most appropriate
   response.




3. Request More Information – If the notice
   lacks details, politely request further clarification or supporting
   documentation from the claimant. This helps ensure you fully
   understand the allegations and can address them accurately.




4. Offer to Make Amends – Consider
   acknowledging the harm caused and offering a remedy, such as a
   retraction, apology, or compensation. This approach shows
   responsibility and a willingness to resolve the issue
   amicably.




5. Make a Retraction – If appropriate,
   formally retract the specific statements identified as defamatory,
   clarifying any misunderstanding or errors in the initial
   publication.




6. Negotiate a Settlement – Many defamation
   cases are resolved through negotiation or mediation, avoiding court
   proceedings. Consider engaging in discussions to reach an agreeable
   resolution for both parties.




7. Formulate a Defence – If you disagree
   with the allegations, prepare a defence that addresses the claims
   point by point. Collect evidence and documentation that supports
   your position and demonstrates the accuracy of your statements or
   the presence of a valid legal defence.




8. Consider the Timing – Be aware of the
   response deadline, typically 28 days in Australia, to ensure your
   reply is timely and compliant with legal requirements.

By following these steps, you can address a concerns notice with
a balanced and informed approach, aiming for a resolution that
mitigates the risk of legal action and upholds your rights and
reputation.

Responding to a Concerns Notice FAQ

Welcome to our comprehensive FAQ section tailored specifically
for understanding defamation law in Australia.

Here, we provide clear and concise answers to some of the most
frequently asked questions regarding the defamation process
responding to a concerns notice.

What is a concerns notice?

A concerns notice is a formal document that alerts someone they
may have published defamatory material. It’s the first step in
resolving defamation issues in Australia, identifying specific
statements considered defamatory and why, aiming to give the
publisher a chance to make amends before legal action is
pursued.

What should I do if I receive a concerns notice?

If you receive a concerns notice, it’s important to review
the document carefully, understand the defamation claims made
against you, and assess the validity of these claims. It’s
advisable to seek legal advice to understand your rights and
options for responding, which could include making an offer to make
amends, requesting more information, or preparing a defence.

How long do I have to respond to a concerns notice?

Typically, you have 28 days to respond to a concerns notice in
Australia. This timeframe allows you to carefully consider your
response and seek legal advice if necessary. It’s crucial to
adhere to this deadline to maintain your legal rights and
options.

Can I request more information about the defamation claims made
in a concerns notice?

Yes, you can request more detailed information if the concerns
notice lacks specificity about the defamation claims. This can help
you better understand the allegations and formulate an appropriate
response. The request should be polite and aimed at clarifying the
issues raised.

What does it mean to make an offer to make amends?

Making an offer to make amends involves acknowledging the harm
caused by the defamatory statements and proposing actions to
rectify the situation. This can include retracting statements,
issuing apologies, or offering compensation. It’s a way to
resolve the dispute amicably and potentially avoid litigation.

What happens if my offer to make amends is accepted?

If your offer to make amends is accepted and you fulfill the
terms, the aggrieved party cannot proceed with defamation
proceedings against you for the related issue. However, you might
still be required to cover their reasonable legal expenses incurred
during the process.

Is retracting a defamatory statement a good response to a
concerns notice?

Retracting a defamatory statement can be an effective response
to a concerns notice. It involves publicly withdrawing the
statement and often includes an explanation or apology. This shows
responsibility and can mitigate further harm to the aggrieved
party’s reputation.

How can I negotiate a settlement if accused of defamation?

Negotiating a settlement often involves discussions between the
parties, sometimes facilitated by legal representatives or a
mediator. It’s a way to agree on terms to resolve the dispute
without court intervention, focusing on rectifying the harm and
possibly including financial compensation.

What defences are available if I decide to contest a defamation
claim?

Defences against defamation include proving the truth of the
statement, showing it was an honest opinion or comment,
demonstrating it was published in the public interest, or under
qualified privilege. The choice of defence depends on the specifics
of your case and legal advice.

Should I get legal advice if I receive a concerns notice?

Yes, seeking legal advice is crucial when you receive a concerns
notice. Defamation law is complex, and a lawyer can guide you
through evaluating the notice, formulating a response, and
understanding your legal options and potential defences.

What are the risks of not responding to a concerns notice
within the given timeframe?

Failing to respond to a concerns notice within the 28-day period
may limit your options for resolving the dispute amicably and
increase the likelihood of facing defamation proceedings. It’s
important to act promptly to maintain your legal rights.

Can a concerns notice lead to a court case?

A concerns notice is a preliminary step intended to resolve
defamation issues without court intervention. However, if the
dispute isn’t resolved through the concerns notice process, it
could lead to defamation proceedings.

How does the concerns notice process benefit both parties
involved in a defamation issue?

The concerns notice process aims to provide a structured way for
parties to address defamation disputes amicably, potentially
avoiding the need for costly and prolonged litigation. It
encourages dialogue and resolution, such as through retractions,
apologies, or compensation.

What is the importance of assessing the validity of a concerns
notice?

Assessing the validity of a concerns notice helps determine
whether the defamation claims are well-founded and whether you have
a potential defence. It’s a crucial step in deciding how to
respond appropriately and effectively.

How does the digital age impact defamation laws and the
concerns notice process?

The digital age has increased the speed and spread of
information, presenting new challenges for defamation laws and the
concerns notice process. Ongoing revisions and interpretations of
defamation laws are necessary to adapt to these changes and address
the complexities of online communication.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.