You get home from work and there’s a letter addressed to you from a law firm. You open it, and out jump the words ‘Concerns Notice’. You’re not really sure what that means, or what there is to be concerned about. Upon reading the letter you realise that you may be in a spot of trouble. Although receiving a Concerns Notice can be stressful, the steps will help you to move forward.
What is a Concerns Notice?
A concerns notice is defined in the Defamation Act 2005 [NSW] as a piece of writing that details the reputation damage that you (the publisher) may have caused to an aggrieved person. A Concerns Notice contains allegations that you have defamed someone and provides for a way to ‘make amends’ and avoid being taken to Court by the aggrieved person.
Remember, a lot of people make the mistake of confusing a concerns notice with a cease and desist letter. A cease and desist letter is a letter which requests that a person stop doing a particular action. If the recipient of this letter keeps doing this action, then they will possibly have proceedings commenced against them by the sender of the letter. By way of contrast, a Concerns Notice ordinarily requests compensation and an apology for the defamatory words.
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Decide on your stance
Did you say or write the allegedly defamatory words? And even if you did, do you think you were justified in saying them? Or, are you happy to admit that you said those things and wish to make amends?
This is the most crucial stage in dealing with a Concerns Notice. In reality, you are not obliged to respond to the Concerns Notice. Some concerns notices are sent for the purpose of scaring someone into silence. It is also worth noting that a Concerns Notice can be ‘all bark and no bite’ meaning that sometimes, even if you do not respond, the aggrieved person may not end up commencing proceedings due to lack of evidence, costs or a desire not to become involved in litigation.
In addition, you may be coerced into giving money to the aggrieved person for defamatory words you did not publish. This is sometimes a method utilised by scammers to extort regular people unaware of such dangers.
However, what can’t be ignored is the fact that the aggrieved person may still commence Court proceedings against you about the matters set out in the notice. For example, due to the fact that regular people unknowingly defame others on social media , there is an aspect of indeterminate liability; so if you receive a concerns notice, it is usually for a good reason, so your best option would be to move to the next step.
Request more information
The best thing to do when you receive a concerns notice is to request for more information about the alleged defamation.
This benefits you in two ways as it will reveal if the Concerns Notice was sent disingenuously (if the aggrieved person does not respond), or the aggrieved person will provide some clarification of what they are alleging you did. This type of request is legally coined a ‘further particulars notice.’ If requested, the aggrieved person must respond with further details that complement the Concerns Notice within 14 days.
Get preliminary legal advice
Defamation Law is a very technical area of law that is best to be discussed with a solicitor in order to properly evaluate your options. From this, you will be able to gather an idea of whether you have a viable defence. Such defences will hinge upon whether:
- What you said was substantially true
- Whether you have the privilege to state such information, or perhaps you are under a protected authority
- Whether your information was contained in a public document
- Whether the information you posted did not have any malicious intent but was instead for the public, the advancement of education or public concern
- Whether the information was just a commentary; a stated opinion rather than fact
- Whether you are a subordinate distributor of the information; that is, you weren’t the original person to state the defamation
- Whether the defamatory content is trivial; in this case, it is unlikely that the aggrieved person should receive harm
In the case that you have a complete defence, you do not have to create an Offer of Amends. However, this defence must be properly particularised and reasonable or else it may be ‘struck out’ as a defence you could use in Court. Additionally, litigation is an expensive exercise to undertake if your defence is not adequate.
If you have a fallible defence, simply denying the allegations towards you is not the best approach in dealing with the problem. Instead, creating an Offer of Amends as set out by the Defamation Act will be the best decision you can make.
Make an offer of amends
An Offer of Amends is simply an offer to amend and/or apologise for the publication that has damaged the aggrieved persons reputation. Legislation states that, if you want to make an Offer of Amends, you must make one within 28 days of when you received the concerns notice.
This can be in provided in many forms:
- A written apology
- A retraction of defamatory statements
- A letter written by a publisher starting dishonesty of publication
- Correction of publication
- A promise not to publish future defamatory statement
- Compensation
- Taking steps to tell others about defamatory content
If the aggrieved person accepts your Offer of Amends and you follow through with the things you have offered, then they cannot sue you or continue with their action against you. If the aggrieved person rejects your offer, this can benefit you as a full defence in any Court action as long as you:
- Make the offer as soon as possible after receiving the concerns notice;
- You prove that you are willing to uphold your offer;
- And your offer was reasonable based on the circumstances.
Slander is the balm of malignity
A Concerns Notice can be to say the least, ‘concerning’, but if you think both reflectively and strategically about why you received the notice and what your ideal outcome is, then you can deal with it effectively before it goes to Court.
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