Issuing a Concerns Notice in Defamation Cases

In most parts of Australia (except Western Australia and the Northern Territory), you must serve a concerns notice before starting a defamation claim.

Even after the concerns notice has been served, you must wait a minimum of 28 days before you can go to court. Depending on what steps the publisher takes concerning the concerns notice, you may even need to wait longer.

The requirement to serve a concerns notice is mandatory. A concerns notice must meet strict, mandatory legal requirements. Failure to comply strictly with the law relating to the substance of a concerns notice can have serious consequences. It can also result in your case being thrown out.

What Is a Concerns Notice?

A concerns notice is a formal written letter that informs the publisher of the defamatory statement that they have harmed your reputation.

The purpose of a concerns notice is to give the publisher of the defamatory statement an opportunity to:

• Correct or retract their statement
• Apologise (whether publicly or in private)
• Remove the defamatory statement (if possible)
• Otherwise remedy the impugned conduct

Legal Requirements for a Valid Concerns Notice

Section 12A of the Defamation Act 2005 (Vic) sets out the minimum, but strict and mandatory requirements that a concerns notice must meet.

These are generally the same across most Australian jurisdictions (except WA and NT):

1. Written Format

The concerns notice must be in writing.

2. Identify Where the Content Appears

You must specify the location where the defamatory material can be accessed.
For example:

• The URL of a Facebook post
• A website link
• A physical publication location

3. List the Defamatory Imputations

Clearly identify the defamatory meanings or imputations conveyed by the publication.

4. Describe the Harm

Explain the serious harm caused or likely to be caused to your reputation because of the publication of the defamatory statement.

If the entity which has been harmed is not a natural person, such as a corporation, then the concerns notice must set out the serious financial harm caused or likely to be caused by the publication of the defamatory statement.

5. Attach the Defamatory Content (If Possible)

The final requirement is somewhat discretionary. It is the requirement to attach a copy of the defamatory statement where it is reasonably practicable to do so.

It is discretionary because, in certain situations, a copy of the defamatory statement may not be able to be attached. This would occur, for example, if the defamatory statement is said to be an oral conversation which was not recorded.

In those circumstances, a copy cannot be attached, because a copy does not exist. It is therefore, not practicable to do so.

Why It’s Crucial to Get the Concerns Notice Right

Drafting a concerns notice may seem straightforward — but it’s legally complex.

Even a minor mistake can lead to:

• A dismissal of your claim
• Delays in proceedings
• A weaker negotiating position
• Multiple requests for further and better particulars

It is essential to seek legal advice from an experienced defamation lawyer to ensure your concerns notice complies with the law.

Need Help with a Concerns Notice?

Our Melbourne-based defamation lawyers have years of experience in advising clients on defamation matters, including drafting concerns notices which are compliant with your State or Territory’s defamation act.

We’ll ensure your rights are protected and your claim starts off on solid ground.

And the highlight of all the above?

• We provide our fixed fee costs up front — so you have certainty in the amount you will have to pay for a concerns notice!
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• Our price beat guarantee is available here.

Disclaimer: This article is general in nature and is not to be relied upon as legal advice on any subject matter. The article should not be used as a substitute for legal advice from a qualified legal practitioner, as the law could change or may not be applicable to the particular matter at hand.