Defamation Law and Ordinary Folk
In a bygone era, the principal defendants in defamation matters involved media outlets, radio broadcasters and the like. These days even if you are not a major publisher there is a good chance that you could be the recipient of a “concerns notice” asking that you cease and desist the conduct complained, apologise and compensate the aggrieved person. One of the major drivers behind this change in defendants is the ease with which matters can now be published on the internet whether as social media posts, online reviews (such as google reviews) or simply as blog posts. This is significant as few realise the potential serious posed by lowering someone else’s reputation especially when writing a scathing review.
What is a concerns notice?
In a general sense under the Defamation Act 2005 (NSW) a concerns notice is a notice that is in writing that informs the publisher of the defamatory imputations that the aggrieved person considers the relevant publication carried. A concerns notice must particularise the imputations of concern adequately otherwise there could be a request for further particulars and any failure to provide such particulars could render the concerns notice invalid (so that it is taken not to have been given). Usually, the concerns notice asks the recipient to provide a response within 28 days (but in some cases there may be greater urgency).
The need for an apology by an offer of amends
An apology, in the defamation context, can be the best approach where it is likely that the publisher defamed the aggrieved person. Simply denying matters could escalate the situation especially when there is no real prospect of defending the matter.
The legislation provides a mechanism for this by an “offer of amends” which usually needs to be made within 28 days of the concerns notice. Under the Defamation Legislation an offer of amends needs to be in writing, state that it is an offer of amends, offer to publish a reasonable correction and where appropriate offer to pay compensation.
An offer of amends plays a significant role in that a reasonable offer can be a complete defence if a reasonable offer is rejected and proceedings follow.
No apology needed if a complete defence applies
If the publisher has a complete defence under the common law or defamation legislation it may decide that there is no need for an offer of amends. One such defence that is commonly relied upon is the defence of truth in that the allegations are said to be substantially true.
Sometimes denying the allegations can lead to further problems especially if the matter goes to court and it ends up being an expensive exercise. For instance if a defence is not reasonably available or if it is not properly particularised then it will not assist. An example of a case where part of the defence was struck out involved the actor Geoffrey Rush who successfully struck out part of the Daily Telegraph’s case for failing to properly particularise the defence of justification [see: Rush v Nationwide News Pty Ltd [2018] FCA 357].
Get legal advice about issuing and responding to a concerns notice
Given that defamation law is a technical area the best approach is to get timely and sensible advice regarding your options when you need to issue or respond to a concerns notice. If your reputation has been harmed by a scathing online review or you have received a concerns notice because of something you have written as an online review or post then contact us to discuss your options.
Template Cease and Desist Letter for Defamation
You can buy a template cease and desist letter regarding defamation on our website in the templates section.
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