A Concerns Notice is the first step in any prospective defamation proceedings. It is a formal, written notice sent by an aggrieved person to the publisher or publishers of allegedly defamatory material. As from 1 July 2021, defamation proceedings cannot be commenced unless a Concerns Notice has been sent to the publisher, and until the expiration of 28 days from the date of its service.
A Concerns Notice is intended to notify the publisher of the alleged defamation, and allows the publisher an opportunity to make amends without the need for legal proceedings.
There are four key elements of a Concerns Notice:
- The notice must be in writing;
- The notice must specify where the publication can be accessed – for example, a Facebook page or a webpage address;
- The notice must notify the publisher of some or all of the imputations that are said to be carried by the publication. An imputation refers to the defamatory meaning that is derived from the words spoken or written in the publication; and
- Depending upon the circumstances, the notice must notify the publisher of any harm that the aggrieved persons considers to be serious harm, that has been caused, or is likely to be caused, as a result of the publication. The nature of the harm will depend upon whether the aggrieved person is a corporation (with less than 10 employees), or an individual person or persons.
The individual receiving a Concerns Notice is provided 28 days to make an "offer to make amends", though it is at their discretion whether they make any such offer. An offer to make amends will include, amongst other things, an offer to correct or clarify the publication, apologise and/or retract the statements made in the publication, and will usually include some offer in respect of the aggrieved person's legal costs. That offer, if accepted, can bring the proceedings to a quick resolution without the need for legal proceedings, such is the advantage of a Concerns Notice.
Please note that this piece is written on the basis of the laws in NSW. While the laws across the states are somewhat uniform on this topic, we do not make any representations that the above will be directly applicable to your individual circumstances.