Defamation to redress - navigating the Concerns Notice process

Reputation is the essence of an individual’s standing within the community. A person’s goodwill or repute can significantly affect their personal relationships, business prospects, employment opportunities, and overall engagement in society. Damage to reputation, whether through written or spoken statements, can therefore have serious and lasting consequences.

In the first part of a two-part series, we examine the remedies available where an aggrieved person considers that their reputation has been harmed or seriously affected by written and/or verbal statements made to third parties about the aggrieved person. We also highlight the importance of properly drafting a notice issued by an aggrieved person alleging defamatory conduct, and the legal consequences that may follow.

Defamatory publication

In Australia, a claim in defamation requires proof of several essential elements. A defamatory publication occurs when:

• a written statement is ‘published’ to at least one third party either in writing or verbally, such as, in form of an article, social media or online post, email, text or WhatsApp message, memorandum, conversational statement, broadcast, et cetera.;

• the publication identifies (directly or indirectly) the aggrieved person;

• the publication conveys one or more defamatory imputations, that is, meanings which would lower the plaintiff’s reputation, expose them to ridicule, or cause others to shun or avoid them; and

• the publication has caused, or is likely to cause, serious harm to their reputation.

Imputations are the meanings or allegations that an ordinary, reasonable reader, listener, or viewer would take from a publication. The courts have held that imputations are not the words themselves, but the meaning conveyed. They are not confined to what is expressly stated, as courts consider both the natural and ordinary meaning of the words understood by an ordinary reasonable reader and any innuendo meanings understood by particular audiences with relevant knowledge. For example, a statement that someone “regularly manipulates financial records” may imply dishonesty, fraud, or professional unfitness. 

Identifying the imputations is a crucial early step in a defamation claim, as they define the scope and focus of a notice to the publisher. After imputations have been identified there needs to be an assessment of whether they are defamatory.

The requirement of a Concerns Notice

Before commencing defamation proceedings in New South Wales and other Australian jurisdictions, a potential plaintiff must issue a Concerns Notice to the publisher. This is a mandatory requirement under the relevant harmonised legislation (Acts), which also prescribe strict rules regarding the content and timing of the notice, including how time is calculated from the date of publication and/or extended. As proceedings cannot be commenced or continued without a valid Concerns Notice, it is essential that the notice complies with these statutory requirements.

The purpose of a properly prepared Concerns Notice is to inform the publisher of the complaint, identify the defamatory imputations, and provide an opportunity for early resolution without litigation. To be valid, a Concerns Notice must:

• be in writing;

• specify the details of the matter complained of;

• identify the defamatory imputations that the aggrieved person considers are conveyed;

• explain the serious harm to reputation caused, or likely to be caused, by the publication; and

• clearly state what is sought from the publisher.

Courts have reiterated that strict compliance with the requirements is critical. A vague or incomplete notice may be deemed invalid, potentially delaying or undermining a claim. Courts have recently reinforced this approach by finding that non-compliance with Concerns Notice requirements are fatal to the proceeding commenced relying on them. In particular, if the notice fails to adequately identify the imputations, the proceedings may be struck out or require reissue of the notice, leading to delay and potential cost consequences, or even loss of the right to issue another notice. Under the Act, a Concerns Notice needs to be sent within 12 months from the publication of the defamatory material.

Serious harm

The relatively new statutory requirement under the Acts for a valid Concerns Notice is for the aggrieved person to show that not just harm, but ‘serious harm’ was caused to their reputation. In this regard, the courts have said that establishing serious harm to the reputation requires evidence but can be inferred from the gravity of allegations, extent and targeting of publication and actual reputational impact. Social media publications can generally readily satisfy serious harm where they are widely disseminated and targeted.

Response to a Concerns Notice

The Acts specify what a publisher can do once they have received a valid Concerns Notice. If you have issued a Concerns Notice or received one yourself as the alleged publisher, a response, including an Offer to Make Amends, can include:

• publishing an apology or correction;

• removing or modifying the material; and

• offering to pay compensation.

When a Concerns Notice is issued, a careful and technical review is required of its content, along with preparing an adequate response. If a publisher makes a reasonable Offer to Make Amends and it is rejected, the publisher may rely on a statutory defence and the aggrieved person fail in the proceedings and be subject to adverse costs consequences. The courts closely scrutinise the aggrieved person’s conduct in such circumstances. Conversely, a publisher who ignores or inadequately responds to a valid Concerns Notice may strengthen the aggrieved person’s position in any court proceedings if commenced.

Consequently, identifying whether a publication is defamatory, the imputations it conveys, what a Concerns Notice must include requires careful consideration and technical legal analysis and advice.

In part two of this series, we will discuss responses to a Concerns Notice, including an Offer to Make Amends, requests for further particulars and further steps if the matter remains unresolved.

If you are concerned that your reputation has been harmed by a publication or if you have received a Concerns Notice alleging defamation, and would like advice on your rights and obligations, please contact our Dispute Resolution & Advisory team.

Authors: Gavin Stuart & Shreya Dutt

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.