Media, Defamation & Reputation ManagementDefamation Procedure – The Basics

A. If you have been defamed.

If a person has been defamed, then that person may wish to make a claim in defamation, including potentially instituting proceedings for defamation, against the publisher of the matter.

The usual procedure for making a claim in defamation, including potentially instituting proceedings, is as follows:

1. 1. preparation of a formal demand on the publisher by way of the service of a Concerns Notice.
      For all Australian jurisdiction except for Western Australia and the Northern Territory, a Concerns Notice must be served on the publisher prior to the institution of defamation proceedings.
      A Concerns Notice must include:
      1. details as to what defamatory imputations (or meanings) are alleged to have been carried by the publication;
      2. particulars or details as to what serious harm  is alleged to have been caused to the person’s reputation by reason of the publication;
      3. details as to the publication itself, including if practicable, providing a copy of the publication.  It is important to make copies of the publication when published, including if relevant taking screenshots of the publication if via social media.

      Consideration should also be given as to what to seek in the Concerns Notice – for example:

      1. publication of an apology;
      2. take down or removal of any online publication;
      3. damages;
      4. costs;

      Note that a letter of demand which only contains some of the elements of a Concerns Notice (such as, for example, seeking the immediate removal from online of the publication, and the publication of an apology) may sometimes be appropriate to send instead of a Concerns Notice, especially if it is urgent that a demand be sent at short notice. Subject to any response, consideration can then be given later to the service of a formal Concerns Notice.

   2. after service of a Concerns Notice, the publisher then has 28 days to make any formal Offer of Amends (being a settlement offer), unless further time is permitted because particulars have been sought pursuant to the applicable legislation.
      A compliant Offer of Amends can potentially be a complete defence to a claim in defamation if proceedings are subsequently instituted, and the offer is found by the Court to be reasonable.
      The applicable legislation provides for what must be contained in an Offer of Amends, including but not limited to an offer to:
      1. publish a reasonable correction, including for example, an apology;
      2. payment of the expenses (or legal costs) reasonably incurred by the person prior to the making of the offer, and also in considering the offer.
   3. If the claim is not resolved after service of the Concerns Notice, then consideration may then be given to the institution of proceedings, and in which court the proceedings should be brought.

B.  If you have been served with a Concerns Notice

If you have been served with a Concerns Notice, it is important to immediately seek legal advice because of the potential that proceedings for defamation may be instituted against you.

Potential issues that may arise upon service of you of a Concerns Notice include:

1. 1. 1. most importantly, what defences may be available in relation to your publication;
      2. whether further particulars (or details) should be sought as to the imputations (or meanings) alleged to  be carried by the publication, and the particulars (or details) as to serious harm alleged to have been caused by the publication;
      3. whether any Offer of Amends (being a compliant settlement offer) should be made, noting as above that if compliant and made within 28 days of the service of the Concerns Notice, an Offer of Amends can potentially be a complete defence to a claim if defamation proceedings are instituted, and the Offer is found by a court to be reasonable.

 

This information is not intended to be a comprehensive review of the law of defamation, does not cover all aspects of the law of defamation, and does not constitute legal advice. Readers should obtain their own legal advice before applying it to specific issues or potential claims.