Just been given a concerns notice? Here’s what to do

Have you said or written something that may have defamed another person, and now you’ve received a letter from that person complaining about what you said or wrote?

Well that letter may be a concerns notice under the ACT’s Civil Law (Wrongs) Act 2002 (“the Act”), and you need to take it seriously because what you do next could keep you out of court.

What’s a ‘concerns notice’?

While defamation litigation can be kicked off against you without any warning, the Act sets out a mechanism to attempt to resolve defamation disputes before people head off to court.

The first step in this process is that the person who feels they’ve been defamed (“the aggrieved person”) will give the person who said or wrote the offending material a “concerns notice”. A concerns notice is a written notice that sets out:

details of the material the aggrieved person is complaining about; and
how the material defamed them, being details of what the material could be understood to insinuate about the aggrieved person (known as the “imputations of concern”).

If you’ve been given a concerns notice, it means the aggrieved person believes they have a defamation claim against you and could sue you for damages.

What are your options?

Do nothing: You’re not obliged to respond to a concerns notice, but the aggrieved person may still commence court proceedings against you about the matters set out in the notice.

Request more information: If you don’t properly understand what the aggrieved person is complaining about, you can send a notice in response requesting further details about why the person believes your material was defamatory. The aggrieved person must provide you with further details of their complaint within 14 days.

Make an offer to make amends: You have 28 days from receiving a concerns notice to make an “offer to make amends”. An offer to make amends can be made in relation to what you wrote or said generally, or can be limited to a particular imputation of concern.

To be a valid offer to make amends under the Act, your offer must:

  • be in writing;
  • be identified as an offer to make amends under the Act;
  • if the offer is limited to one particular imputation of concern, state that the offer is so limited;
  • include an offer to publish a correction of the matter the aggrieved person has complained to you about;
  • include an offer to take reasonable steps to tell any person who has received the offending material that it may be defamatory; and
  • include an offer to pay the aggrieved person’s legal costs.

You might also consider including the following in your offer to make amends:

  • an offer to publish an apology to the aggrieved person;
  • an offer to pay compensation to the aggrieved person; or
  • details of any correction or apology you’ve already made in relation to the aggrieved person’s complaint.

The effect of an offer to make amends

If the aggrieved person accepts your offer to make amends and you do all the things you promised in the offer, then the aggrieved person can’t commence or continue any court action against you for defamation.

If the aggrieved person fails to accept your offer to make amends, you can rely on that offer as a full defence to any court action for defamation against you, so long as:

  • you make the offer as soon as practicable after receiving the concerns notice;
  • you were ready and willing to hold up your end of the deal and do all the things you had promised in the offer; and
  • your offer was reasonable in the circumstances.

If you have in fact said or written something that may be defamatory, a concerns notice can be a lifeline allowing you to understand the claim being made against you and quickly quash potential litigation against you before anyone starts incurring big legal costs, so we recommend you don’t ignore it!

Get advice on whether your words may have actually been defamatory and then get help to draft a reasonable offer to make amends to settle the matter early and protect you from a claim down the track.

Meyer Vandenberg has extensive experience in all things defamation and we’re here to help, just call…

For more information contact the Commercial Dispute Resolution Team:

Bernice Ellis — Partner — Commercial Dispute Resolution
(02) 6279 4385
bernice.ellis@mvlawyers.com.au

Greg Brackenreg — Special Counsel — Commercial Dispute Resolution
(02) 6279 4409
greg.brackenreg@mvlawyers.com.au

Justine Harper — Associate — Commercial Dispute Resolution
(02) 6279 4400
justine.harper@mvlawyers.com.au