Olivia is the Head of Legal at Lawpath, where she helps Australian businesses navigate complex legal challenges with practical, commercially minded advice. She specialises in employment matters, contract drafting, pre-litigation strategy, dispute resolution, commercial law and startup compliance, and has supported clients across technology, healthcare, professional services and retail. Olivia is passionate about making legal services accessible, personable and effective for every client.
A concerns notice is a formal written warning, now required under Australian defamation law, telling you that someone believes you have defamed them and plans to take you to court unless the matter is resolved. Since the 2021 defamation reforms, a concerns notice for defamation is the mandatory first step a person must take before they can sue you, so the letter in your hand is the start of a legal process, not an idle threat.
Getting one is unsettling. You open the envelope, see a law firm’s letterhead, and your stomach drops. Here is the reframe: a concerns notice is also your window to fix this cheaply, often without a lawsuit and sometimes with nothing more than an apology. What you do in the next 28 days matters more than what you said.
- A concerns notice is now mandatory before anyone can sue you. Under the 2021 reforms, a person cannot start defamation proceedings until they have served a valid concerns notice and the response period has run.
- You usually have 28 days to respond with an offer to make amends. That period runs from the day you receive the notice. The sender cannot start court action until it expires.
- The sender must now prove “serious harm”. Hurt feelings are not enough. If the publication did not cause, and is not likely to cause, serious harm to reputation, the claim fails.
- You are not legally forced to respond, but silence can cost you. A reasonable offer to make amends is one of your strongest defences if the matter ever reaches a courtroom.
- A concerns notice is not a cease and desist letter. One is a pre-litigation step in a defamation claim. The other just asks you to stop doing something.
What is a concerns notice, and how is it different from a cease and desist letter?
In plain terms, a concerns notice is a written document that spells out how a publication has damaged someone’s reputation and gives you a chance to make amends before they sue. It is defined in each state and territory’s defamation law, including the Defamation Act 2005 (NSW), and the rules are near-identical across the country after the 2021 reforms.
People mix it up with a cease and desist letter constantly. They are not the same thing. A cease and desist letter asks you to stop doing something, like using a logo or repeating a claim. A concerns notice is narrower and more serious: it is the formal pre-litigation step in a defamation case, and it usually asks for an apology, a correction, or compensation for words you have already published.
In practice, the difference is what comes next. Ignore a cease and desist letter and the other side has to decide whether to escalate. Ignore a concerns notice and the clock has already started on a defamation claim the sender was legally required to tee up first. If you are unsure whether the words even count as defamation, our guide on what defamation is is worth five minutes before you do anything else.
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Do you have to respond before you can be sued?
No, you are not legally compelled to respond to a concerns notice. But the question most people actually want answered is the other way around: does the sender have to send one before suing? Yes. That is the single biggest change from the old law.
Since 1 July 2021, a person cannot start defamation proceedings until they have given you a valid concerns notice and waited out the response period. The notice in your hand is not a bluff tactic the sender chose. It is a step the law forced them to take. That cuts both ways. It means they are serious enough to have started the formal process, and it means you have a defined, protected window to sort things out before a statement of claim can be filed.
The reforms added a second hurdle for the sender: serious harm. They must now show the publication caused, or is likely to cause, serious harm to their reputation. For a small business suing over a bad review, that bar is higher than it sounds. A single grumpy comment that nobody acted on may not clear it. This is why some concerns notices are, as the saying goes, all bark and no bite.
Here is the catch. “Not obliged to respond” is not the same as “safe to ignore”. If you stay silent and the matter later lands in court, you lose the chance to rely on a reasonable offer to make amends, which is one of the best defences available. Silence is a choice, and it is usually the wrong one.
How long do you have to respond to a concerns notice?
In most cases you have 28 days from the day you receive the concerns notice to make an offer to make amends. This is called the applicable period, and the sender cannot start proceedings until it ends. Miss it and you do not lose the right to defend yourself, but you do lose the cheapest exit.
If the notice is vague about what you actually said wrong, you can buy clarity. You serve a further particulars notice asking the sender to spell out the defamatory imputations. They then have 14 days to respond. If they do not, the concerns notice can be treated as invalid, which means they cannot sue on it as it stands.
| Deadline | What it is | Why it matters to you |
|---|---|---|
| 28 days | The applicable period to make an offer to make amends, running from when you receive the notice | Your protected window to resolve things before court; make any offer inside it |
| 14 days | Time the sender has to answer your further particulars notice | If they go quiet, their concerns notice may be invalid |
| 12 months | The limitation period for the sender to sue, from the date of publication | For online posts, the clock starts when it is first uploaded, not when someone reads it |
| Up to 3 years | The extended limitation period a court can allow in limited cases | An expired 12 months is not always the end of the risk |
Treat the 28 days as real. It is tempting to sit on the letter and hope it goes away. It rarely does, and every day you wait is a day less to get advice and draft a response that protects you.
Is the concerns notice even valid?
Before you panic or pay anyone a cent, check whether the notice ticks the legal boxes. A concerns notice that does not meet the statutory requirements may not be able to support court action, and plenty of DIY notices miss the mark. A valid concerns notice must be in writing and must:
- identify where the publication can be found, such as the web page, post, or email
- specify the defamatory imputations, meaning the exact damaging meanings the sender says the words carry
- state the serious harm to reputation the publication caused or is likely to cause
- where the sender is a business able to sue, set out the serious financial loss alleged
Note that a document which starts a court case cannot double as a concerns notice, so the sender has to do this properly and first. If the notice is a one-line “you defamed me, pay up” with no specifics, it is likely defective. That does not make the problem vanish, but it hands you time and the upper hand.
Your four options after receiving a concerns notice
Most people freeze because they think there are a hundred ways to respond. There are really four. Picking the right one comes down to a single question: did you publish it, and can you stand behind it?
| Your option | When it fits | The trade-off |
|---|---|---|
| Make an offer to make amends | You published it, you accept it caused harm, and you want this gone fast | Cheapest and quickest exit; closes off the dispute if accepted |
| Request further particulars | The notice is vague about what you supposedly said wrong | Buys clarity and time; may expose a weak or invalid notice |
| Defend the claim | What you published was true, fair, or otherwise protected | Strongest position if your defence holds; costly if it does not |
| Do nothing | Rarely the right call | Keeps your options open on paper, but forfeits the amends defence and invites a lawsuit |
Our honest view: most recipients over-think this. If you got it wrong, a prompt, genuine offer to make amends ends the matter far more often than a stubborn denial. If you got it right, a clear defence backed by evidence does the heavy lifting. The middle path of ignoring it is the one that tends to end in court.
How to make an offer to make amends
An offer to make amends is your formal offer to put things right. Made within the 28-day window and done reasonably, it can resolve the whole dispute, and if the sender rejects a reasonable offer, it becomes a defence you can run in court. It does not have to mean a payout. An offer can include any mix of:
- a written apology
- a correction or retraction of the statement
- taking the publication down, or stopping further publication
- telling the people who saw it that the claim was wrong
- paying the sender’s reasonable expenses, and compensation if warranted
Picture a cafe owner who posted that a former supplier “rips off small businesses” after a billing stuff-up. The supplier sends a concerns notice. A clean offer might be: remove the post, publish a short correction, and email the handful of people who shared it. No money changes hands, and the matter closes. That is the pattern a good offer follows. Fix the harm, fix it fast, and make the fix match the size of the damage.
Three things make an offer stick: make it early, make it genuine, and make it proportionate. An offer scribbled on day 27 that reads like a shrug does not carry the same weight as a prompt, specific one. Get the wording checked, because a sloppy offer can admit more than you intend.
What defences might you have?
If you believe you did nothing wrong, you may have a complete defence, and you are not obliged to offer amends at all. Defamation law gives recipients several defences, and the common ones turn on whether:
- what you published was substantially true
- it was an honest opinion, clearly framed as opinion rather than fact
- it was protected by privilege, such as a report made to the right authority
- it appeared in a public document or a fair report of public proceedings
- you were a secondary distributor who did not originate the content
One word of caution. A defence that feels obvious to you still has to be particularised and reasonable, or a court can strike it out. “It’s true” is not a defence until you can prove it with evidence. Before you bank on a defence, it pays to have a defamation lawyer pressure-test it, which you can do through our defamation lawyer directory on a fixed-fee basis.
Where people go wrong after a concerns notice
The law changed in 2021, but a lot of advice online did not. The most common mistake is treating the notice like the old optional warning it used to be. It is now a formal pre-litigation step, and the 28-day window is doing real work.
Paying up out of fear is the second trap. Some notices are sent to frighten people into silence, and scammers do copy the format to extort money for words the recipient never published. Check the notice is valid and the claim is real before you reach for your wallet.
Third on the list is firing back an angry denial, in writing, that repeats the very words complained of or adds new ones. That can make things worse. If you are furious, that is the moment to get advice, not to hit send. And if the shoe is on the other foot and you are the one who has been defamed, start with what you can do if you have been defamed rather than a late-night post you will regret.
Does it matter which state you are in?
Mostly, no. The 2021 reforms were a national project, so the concerns notice rules, the serious harm test, and the 28-day period are consistent across New South Wales, Victoria, Queensland, South Australia, the ACT, Tasmania, and the Northern Territory. Western Australia and the Northern Territory adopted the changes a little later, but the framework now lines up.
What differs is the Act you point to. In Queensland the requirement sits in the Defamation Act 2005 (Qld); in New South Wales it is the equivalent provision in the NSW Act. If your notice came from interstate, the publication is usually treated under the law where the harm to reputation happened, which is a good reason to get local advice rather than assume.
Frequently asked questions
What is a concerns notice?
A concerns notice is a written warning that someone believes you defamed them and intends to sue unless the matter is resolved. It sets out the publication, the damaging meanings alleged, and the serious harm claimed. Since 2021 it is the mandatory first step before anyone can start a defamation case against you.
Do I have to send a concerns notice before suing for defamation?
Yes. Since 1 July 2021, a person cannot start defamation proceedings in Australia until they have served a valid concerns notice and the response period has expired. A court document cannot double as the notice, so the notice must come first and on its own.
How long do I have to respond to a concerns notice?
You generally have 28 days from receiving the notice to make an offer to make amends. The sender cannot start court action until that period ends. If you ask for further particulars, the sender has 14 days to reply, and the timing can shift accordingly.
What happens if I ignore a concerns notice?
You are not legally forced to respond, but ignoring it is risky. Once the response period ends, the sender can start proceedings. You also give up the chance to rely on a reasonable offer to make amends, which is one of the strongest defences available to you.
What does “serious harm” mean?
Since 2021 the person suing must prove the publication caused, or is likely to cause, serious harm to their reputation. Hurt feelings or mild embarrassment are not enough. For a business that can sue, the test is serious financial loss, which is a meaningful bar to clear.
Is a concerns notice the same as a cease and desist letter?
No. A cease and desist letter asks you to stop an action, like using a trademark. A concerns notice is the formal pre-litigation step in a defamation claim about something you already published, and it usually seeks an apology, a correction, or compensation.
Can a concerns notice be invalid?
Yes. A notice that fails to identify the publication, specify the defamatory imputations, or state the serious harm may not meet the legal requirements. If it is vague, you can serve a further particulars notice. If the sender does not respond within 14 days, the notice can be treated as invalid.
Will an apology count as admitting I defamed someone?
Not on its own. Defamation law protects an apology so that saying sorry is not treated as an admission of liability. An apology can form part of an offer to make amends and often helps resolve the matter. Get the wording checked so it does not concede more than you mean.
What if the concerns notice looks like a scam?
Some notices are sent to frighten people into paying for words they never published. Check whether the notice is valid, whether you actually published the content, and whether the claim is real before paying anything. If in doubt, have a defamation lawyer review it before you respond.
Do I need a lawyer to respond to a concerns notice?
Responding yourself is possible, but defamation is technical and the stakes are high. A lawyer can check the notice is valid, test any defence, and draft a response that does not admit more than it should. A short fixed-fee review early on is far cheaper than a court case later.
You’ve got this. Here’s the one thing to do next.
A concerns notice feels like the end of the world when it lands. It is not. For most people it is a solvable problem with a clear deadline, and the reforms that made it mandatory also gave you a protected window to fix things on your terms. You are not behind, and you are not the first person to open one of these.
Do one thing today: get the notice in front of a defamation lawyer while the 28 days are still ticking. A quick fixed-fee review tells you whether the notice is valid, whether you have a defence, and exactly what to say back.
Get a fixed-fee quote from a defamation lawyer today.
