The First Steps
There have been some high profile defamation cases recently where celebrities have successfully sued media conglomerates for publishing defamatory articles. While those stories are entertaining to read about, you may have wondered "what legal options are available if someone is making wrongful, unjustified, or just plain nasty comments about me?"
Concerns Notice
If someone has made a comment to a third party which is likely to
damage your reputation, you have the right to issue a Concerns
Notice. A Concerns Notice must specify each and every defamatory
imputation, and gives the person who made the defamatory comment 28
days to 'make amends' – that is, offer to publish a
correction, apologise, and pay reasonable expenses. If you are
satisfied and accept the offer to make amends, then the matter is
concluded and you cannot sue for defamation. However, if you are
not satisfied with the offer, or no offer is made within 28 days,
you may commence legal proceedings for defamation.
Tricks
A Concerns Notice is an effective way to have a damaging online
post removed or have someone send a correction email to set the
record straight. However, to protect your right to take legal
action, it is important that every defamatory imputation is
properly specified, as your right to sue is contained to what you
have listed in the Concerns Notice. While not legally required, it
is also a good idea to specify what kind of offer you are willing
to accept, providing the exact wording for what you consider to be
an acceptable correction to be published.
Traps
There are defences available to defamation, for example where the
damaging comments: are true, form a critical opinion, are made in
the public interest, or are protected by parliamentary privilege.
If a person thinks that these defences can be raised, they may
choose to ignore the Concerns Notice. However, ignoring a notice
can be risky, even if you do have a good defence, as the aggrieved
person may commence legal proceedings which can be very costly to
defend. There was a high profile case recently in Queensland where
some of the defendants to a defamation case were ordered to pay the
legal costs of the plaintiff – before the matter had even
gone to trial. If you receive a Concerns Notice, even if you are
sure what you said is justified and your defence is
'bulletproof', it is best to seek legal advice as to what
action you should take, as the consequences can be devastating.
Time limits
Legal proceedings for defamation must be filed by no later than 1
year after the date the defamatory comments were made or published.
Accordingly, a Concerns Notice should be sent no later than 11
months after the defamatory comments were made. In respect of
comments published online, the date of publication is actually the
date it can be accessed online, not the date on which it is first
published. This means that for comments posted online, the time
limit is effectively one year after the comments have been removed
from access via the World Wide Web. Nevertheless, we consider that
you should take action as soon as possible if you find out that
potentially defamatory comments have been made about you.
Other restrictions
An action in defamation cannot be made by any company with more
than 9 employees, or a company that is part of a group of
companies. Also, despite the well-known proverb that "you
should not speak ill of the dead", an action in defamation
cannot be brought or maintained on behalf of a deceased person.
Recovering Costs
Clients often ask if they can recover their legal costs. Usually,
your legal costs for a dispute would only be recoverable if legal
proceedings are commenced and resolved in your favour. However, in
the case of defamation, the legislation provides that an Offer to
Make Amends must include an offer to pay the reasonable expenses of
preparing the notice and considering the offer. So, while you
cannot enforce the recovery of legal costs, if a person is offering
to make amends, they should offer to pay your costs if they wish to
rely on the offer to completely extinguish your right to sue.
In practice, it can be difficult to recover your costs, and
although we have had examples where we recovered 100% of our
clients' costs for preparing a Concerns Notice, we would not
suggest that you proceed with a Concerns Notice with the
expectation that you will be able to recover your costs.
Conclusion
Taking action for defamation is an effective tool to protect the
reputation of you or your business. A well drafted Concerns Notice
will usually result in remedial action by way of having an
offending comment removed or a correction issued. Further, if you
receive a Concerns Notice for something you might have said, it is
critical that you seek legal advice as soon as possible as the
consequences of inaction may be disastrous.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.