Defamation Concerns Notice

A Defamation Concerns Notice is a notice which may be sent by a person or organisation which believes that defamatory material has been published about them (the "Sender"), to the individual or business that has published the defamatory material (the "Defamer").

Defamation is an area of law in Australia which deals with protecting a person's reputation. Australian defamation law tries to balance a person's right to protect their reputation against the right of free speech. As a result, if person 1 communicates something to person 2, and that communication harms the reputation of person 3 (and person 1 has no legal defence available), then person 3 may be able to take action in defamation against person 1. They may be able to seek various remedies such as an apology, a retraction, and compensation. There are a number of defences to defamation though, for example, if person 1's claims are true, or if they are a fair report of proceedings of public concern. Australian law used to use the terms "libel" and "slander", but this is no longer the case and these terms have now both been replaced by the general term "defamation".

This document may notify the Defamer that the Sender is aware of the publication of the material, that the Sender believes it is defamatory, and that the Sender is ready to take further action if the Defamer does not rectify the situation. The notice may also describe what the Defamer needs to do in order to rectify the situation.

This notice may be used as a "concerns notice" as described under defamation legislation in each state and territory of Australia. Under that legislation, a concerns notice provides a way for the Sender to raise their concerns with the Defamer, and for the Defamer to "make amends" for the defamation, which may save the parties the cost and expense of going to court.

Defamation is a particularly time sensitive matter. Any time that defamatory material sits in the public sphere (such as on a website, or in a newspaper without having been retracted), it could be doing harm to the Sender's reputation. Therefore, it is important that the Sender deal with the matter swiftly, and plans their next steps in advance. This notice allows the Sender to get on the front foot in relation to the defamation. If the Sender has any further concerns about their legal situation they should strongly consider seeking legal advice.

This notice is specifically designed for defamation matters. For general cease and desist matters, we have a General Cease and Desist Notice available. For matters relating to Copyright Infringement or Trademark Infringement respectively, we have other templates available - see our Copyright Infringement Cease and Desist Letter and our Trademark Infringement Cease and Desist Letter.

Use of this notice by corporations

It is important to note that under Australian law, most corporations are not able to sue for defamation (and therefore are not entitled to issue a concerns notice). In particular, the relevant defamation legislation in each state and territory of Australia only allows an "excluded corporation" to bring action in relation to defamation. That legislation further clarifies that a corporation is an excluded corporation if it is not a public body and –

(a) the objects for which it is formed do not include obtaining financial gain for its members or corporators - in other words, it does not operate for profit (for example, if it is a charity); or

(b) it employs fewer than 10 persons and is not related to another corporation –

There is some ambiguity in this definition. For example, if a corporation has nine permanent employees, but uses a number of other employees that it gets through a labour hire firm (and are technically employees of that labour hire firm), it may be unclear whether this will affect the corporation's status as an "excluded corporation".

In any event, if the corporation operates for profit, is not a public body, or has more than 10 ordinary full time employees, it is probable that it will not be considered an "excluded corporation" under this definition, and therefore will not be entitled to take action in relation to defamation.

However, if the parties involved in this matter are unsure whether or not the corporation is entitled to take action in relation to defamation, then they should strongly consider seeking legal advice.

How to use this document

This Defamation Concerns Notice includes the following basic elements:

• Information about the Sender: this is the individual or business which believes that defamatory material has been published about them
• Information about the Defamer: this is the individual or business that has published the defamatory material
• A description of how, where and when the defamatory material was published (for example, the headline of the newspaper article containing the defamatory material, as well as the date of publication and newspaper in which it was published)
• A clearly particularised (ie clearly spelled out) list of the defamatory imputations

In addition, there is an option to include some details about what the relevant legislation requires the Defamer to do in response to this notice. There is also an option to include any further requests from the Sender (requests which are not addressed in the relevant legislation, but which the Sender nevertheless wants the Defamer to do).

In relation to defamation, when we talk about an "imputation", we are talking about the particular defamatory suggestion that the material makes about a person.

Sometimes this is obvious. A person might say exactly what they mean, for example "Sandra Reynolds is a thief". At other times, a person might not say exactly what they mean, but the negative imputation about the person can be inferred. For example, they might say "Sandra Reynolds took money from a charity". From this statement, we might be able to infer that what they were really saying about Sandra Reynolds is that she is a thief, and that she has low moral standards. Therefore, we could say that the statement "Sandra Reynolds took money from a charity" contains two defamatory imputations: (1) that Sandra Reynolds is a thief, and (2) that Sandra Reynolds has low moral standards.

It is also important to note that in order to qualify as a "concerns notice" under the relevant legislation, this notice must be in writing, and must inform the Defamer of the "imputations of concern". In other words, it must inform the Defamer of the defamatory imputations that the Sender considers are or may be carried about the Sender by the matter in question.

Under that legislation, it is necessary to provide a concerns notice and serve a waiting period (usually 28 days) before commencing defamation proceedings. Once a valid concerns notice has been sent to the Defamer, the Defamer may respond within 28 days with an "offer to make amends".

However, if the concerns notice does not adequately particularise (or spell out) the "imputations of concern", then rather than providing an "offer to make amends", the Defamer may provide a "further particulars notice", asking for further details about the defamatory imputations. Obviously, this can delay the resolution of this matter. Therefore, it is important that the Sender is careful when preparing this notice, to make sure that they clearly identify all of the defamatory imputations which concern them.

Once the notice has been completed, it may be sent by registered post to the Defamer. The Sender should keep a record of the letter, and should keep an eye out for a response from the Defamer.

If the Sender does not get a satisfactory response from the Defamer, within the required time period, then it may be necessary to seek legal advice and consider commencing legal proceedings.

Applicable law

Australia now has uniform defamation laws. This means that while different legislation has been enacted in each state and territory, the provisions of that legislation are similar between jurisdictions. The relevant legislation in each state and territory is as follows:

• Civil Law (Wrongs) Act, 2002 (ACT)
• Defamation Act, 2006 (NT)
• Defamation Act, 2005 (NSW)
• Defamation Act, 2005 (QLD)
• Defamation Act, 2005 (SA)
• Defamation Act, 2005 (TAS)
• Defamation Act, 2005 (VIC)
• Defamation Act, 2005 (WA)

Given the broad distribution of many forms of media, a person or organisation that wants to commence legal action for defamation, may have several different jurisdictions to choose from. For example, if defamatory material is published in a newspaper which is distributed throughout Australia, then the defamatory material may have been published in every state and territory of Australia. As a consequence, legal action for defamation may be commenced in any of those jurisdictions. Or in the event of defamatory material being published online, the material might also have been distributed in jurisdictions outside Australia.

The creation of uniform defamation laws in Australia has helped to reduce the differences between the laws of each Australian state and territory, and therefore has helped to reduce "jurisdiction shopping" - whereby potential litigants compare the legislation between the different states and territories, and choose to commence legal action in a jurisdiction which is most favourable to their situation.

Nevertheless, in many defamation matters, the person or organisation that believes they have been defamed, may have been defamed in multiple jurisdictions. Therefore they may wish to obtain legal advice regarding (among other things) the appropriate jurisdiction in which to deal with their matter.

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